Nelson v. James H. Knight DDS, P.C., 834 N.W.2d 64 (Iowa 2013).docx

Nelson v. James H. Knight DDS, P.C., 834 N.W.2d 64 (Iowa
2013)
-1-
834 N.W.2d 64
Melissa NELSON, Appellant,
v.
JAMES H. KNIGHT DDS, P.C. and
James Knight, Appellees.
No. 11–1857.
Supreme Court of Iowa.
July 12, 2013.
Rehearing Denied July 19, 2013.
Appeal from the Iowa District Court for
Webster County, Thomas J. Bice, Judge.
A former employee appeals from the district

court's grant of summary judgment to an
employer in a sex discrimination case.
AFFIRMED.
Paige E. Fiedler and Emily E. McCarty of
Fiedler & Timmer, P.L.L.C., Urbandale, for
appellant.
[834 N.W.2d 65]
Stuart J. Cochrane and James L. Kramer of
Johnson, Kramer, Good, Mulholland,
Cochrane & Driscoll, P.L.C., Fort Dodge, for
appellees.
MANSFIELD, Justice.1
Can a male employer terminate a long-
time female employee because the employer's
wife, due to no fault of the employee, is
concerned about the nature of the
relationship between the employer and the
employee? This is the question we are

required to answer today. For the reasons
stated herein, we ultimately conclude the
conduct does not amount to unlawful sex
discrimination in violation of the Iowa Civil
Rights Act.
We emphasize the limits of our decision.
The employee did not bring a sexual
harassment or hostile work environment
claim; we are not deciding how such a claim
would have been resolved in this or any other
case. Also, when an employer takes an
adverse employment action against a person
or persons because of a gender-specific
characteristic, that can violate the civil rights
laws. The record in this case, however, does
not support such an allegation.
I. Facts and Procedural Background.
Because this case was decided on

summary judgment, we set forth the facts in
the light most favorable to the plaintiff,
Melissa Nelson.
In 1999, Dr. Knight 2 hired Nelson to
work as a dental assistant in his dental office.
At that time, Nelson had just received her
community college degree and was twenty
years old.
Over the next ten-and-a-half years,
Nelson worked as a dental assistant for Dr.
Knight. Dr. Knight admits that Nelson was a
good dental assistant. Nelson in turn
acknowledges that Dr. Knight generally
treated her with respect, and she believed him
to be a person of high integrity.
On several occasions during the last year
and a half when Nelson worked in the office,
Dr. Knight complained to Nelson that her

clothing was too tight and revealing and
“distracting.” Dr. Knight at times asked
Nelson to put on her lab coat. Dr. Knight later
testified that he made these statements to
Nelson because “I don't think it's good for me
to see her wearing things that accentuate her
body.” Nelson denies that her clothing was
tight or in any way inappropriate.3
During the last six months or so of
Nelson's employment, Dr. Knight and Nelson
started texting each other on both work and
personal matters outside the workplace. Both
parties initiated texting. Neither objected to
the other's texting. Both Dr. Knight and
2013)
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Nelson have children, and some of the texts
involved updates on the kids' activities and
other relatively innocuous matters. Nelson
considered Dr. Knight to be a friend and
father figure, and she denies that she ever
flirted with him or sought an intimate or
sexual relationship with him. At the same
time, Nelson admits that a coworker was
“jealous that we got along.” At one point,
Nelson
[834 N.W.2d 66]
texted Dr. Knight that “[t]he only reason I
stay is because of you.”
Dr. Knight acknowledges he once told
Nelson that if she saw his pants bulging, she
would know her clothing was too revealing.
On another occasion, Dr. Knight texted

Nelson saying the shirt she had worn that day
was too tight. After Nelson responded that
she did not think he was being fair, Dr.
Knight replied that it was a good thing Nelson
did not wear tight pants too because then he
would get it coming and going. Dr. Knight
also recalls that after Nelson allegedly made a
statement regarding infrequency in her sex
life, he responded to her, “[T]hat's like having
a Lamborghini in the garage and never
driving it.” Nelson recalls that Dr. Knight
once texted her to ask how often she
experienced an orgasm. Nelson did not
answer the text. However, Nelson does not
remember ever telling Dr. Knight not to text
her or telling him that she was offended.
In late 2009, Dr. Knight took his children
to Colorado for Christmas vacation. Dr.

Knight's wife Jeanne, who was also an
employee in the dental practice, stayed home.
Jeanne Knight found out that her husband
and Nelson were texting each other during
that time. When Dr. Knight returned home,
Jeanne Knight confronted her husband and
demanded that he terminate Nelson's
employment. Both of them consulted with the
senior pastor of their church, who agreed with
the decision.
Jeanne Knight insisted that her husband
terminate Nelson because “she was a big
threat to our marriage.” According to her
affidavit and her deposition testimony, she
had several complaints about Nelson. These
included Nelson's texting with Dr. Knight,
Nelson's clothing, Nelson's alleged flirting
with Dr. Knight, Nelson's alleged coldness at

work toward her (Jeanne Knight), and
Nelson's ongoing criticism of another dental
assistant. She added that
[Nelson] liked to hang around after work
when it would be just her and [Dr. Knight]
there. I thought it was strange that after being
at work all day and away from her kids and
husband that she would not be anxious to get
home like the other [women] in the office.
At the end of the workday on January 4,
2010, Dr. Knight called Nelson into his office.
He had arranged for another pastor from the
church to be present as an observer. Dr.
Knight, reading from a prepared statement,
told Nelson he was firing her. The statement
said, in part, that their relationship had
become a detriment to Dr. Knight's family
and that for the best interests of both Dr.

Knight and his family and Nelson and her
family, the two of them should not work
together. Dr. Knight handed Nelson an
envelope which contained one month's
severance pay. Nelson started crying and said
she loved her job.
Nelson's husband Steve phoned Dr.
Knight after getting the news of his wife's
firing. Dr. Knight initially refused to talk to
Steve Nelson, but later called back and invited
him to meet at the office later that same
evening. Once again, the pastor was present.
In the meeting, Dr. Knight told Steve Nelson
that Melissa Nelson had not done anything
wrong or inappropriate and that she was the
best dental assistant he ever had. However,
Dr. Knight said he was worried he was getting
too personally attached to her. Dr. Knight told

Steve Nelson that nothing was going on but
2013)
-3-
that he feared he would try to have an affair
with her down the road if he did not fire her.
Dr. Knight replaced Nelson with another
female. Historically, all of his dental
assistants have been women.
[834 N.W.2d 67]
After timely filing a civil rights complaint
and getting a “right to sue” letter from the
Iowa Civil Rights Commission, Nelson
brought this action against Dr. Knight on
August 12, 2010. Nelson's one-count petition
alleges that Dr. Knight discriminated against
her on the basis of sex. Nelson does not

contend that her employer committed sexual
harassment. See McElroy v. State, 637
N.W.2d 488, 499–500 (Iowa 2001)
(discussing when sexual harassment amounts
to unlawful sex discrimination and restating
the elements of both quid pro quo and hostile
work environment sexual harassment). Her
argument, rather, is that Dr. Knight
terminated her because of her gender and
would not have terminated her if she was
male.
Dr. Knight moved for summary
judgment. After briefing and oral argument,
the district court sustained the motion. The
court reasoned in part, “Ms. Nelson was fired
not because of her gender but because she
was a threat to the marriage of Dr. Knight.”
Nelson appeals.

II. Standard of Review.
We review the district court's summary
judgment ruling for correction of errors at
law. Pecenka v. Fareway Stores, Inc., 672
N.W.2d 800, 802 (Iowa 2003). We view the
factual record in the light most favorable to
the nonmoving party, affording that party all
reasonable inferences. Id. Summary
judgment is proper only if the record, so
viewed, entitles the moving party to judgment
as a matter of law. Id.
III. Analysis.
Section 216.6(1)( a ) of the Iowa Code
makes it generally unlawful to discharge or
otherwise discriminate against an employee
because of the employee's sex. Iowa Code §
216.6(1)( a ) (2009). “When interpreting
discrimination claims under Iowa Code

chapter 216, we turn to federal law, including
Title VII of the United States Civil Rights
Act....” Deboom v. Raining Rose, Inc., 772
N.W.2d 1, 7 (Iowa 2009). Generally, an
employer engages in unlawful sex
discrimination when the employer takes
adverse employment action against an
employee and sex is a motivating factor in the
employer's decision. See Channon v. United
Parcel Serv., Inc., 629 N.W.2d 835, 861 (Iowa
2001).
Nelson argues that her gender was a
motivating factor in her termination because
she would not have lost her job if she had
been a man. See, e.g., Watson v. Se. Pa.
Transp. Auth., 207 F.3d 207, 213, 222 (3d
Cir.2000) (affirming a jury verdict in a Title
VII case because the charge, taken as a whole,

adequately informed the jury that sex had to
be a but-for cause of the adverse employment
action). Dr. Knight responds that Nelson was
terminated not because of her sex—after all,
he only employs women—but because of the
nature of their relationship and the perceived
threat to Dr. Knight's marriage. Yet Nelson
rejoins that neither the relationship nor the
alleged threat would have existed if she had
not been a woman.
Several cases, including a decision of the
United States Court of Appeals for the Eighth
Circuit, have found that an employer does not
engage in unlawful gender discrimination by
discharging a female employee who is
involved in a consensual relationship that has
triggered personal jealousy. This is true even
though the relationship and the resulting

jealousy presumably would not have existed if
the employee had been male.
2013)
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Tenge v. Phillips Modern Ag Co., like the
present case, centered on a personal
relationship between the owner of a small
business and a valued employee of the
business that was seen by the owner's wife as
a threat to their marriage.
[834 N.W.2d 68]
446 F.3d 903, 905–06 (8th Cir.2006). In that
case, unlike here, the plaintiff had pinched
the owner's rear. Id. at 906. She admitted that
the owner's wife “could have suspected the

two had an intimate relationship.” Id.
Further, the plaintiff acknowledged she wrote
“notes of a sexual or intimate nature” to the
owner and put them in a location where
others could see them. Id. In the end, the
owner fired the plaintiff, stating that his wife
was “ ‘making me choose between my best
employee or her and the kids.’ ” Id.
Reviewing this series of events, the
Eighth Circuit affirmed the summary
judgment in favor of the defendants. Id. at
911. The Eighth Circuit first noted the
considerable body of authority that “ ‘sexual
favoritism,’ where one employee was treated
more favorably than members of the opposite
sex because of a consensual relationship with
the boss,” does not violate Title VII. Id. at
908–09. The court distilled that law as

follows:
[T]he principle that emerges from the
above cases is that absent claims of coercion
or widespread sexual favoritism, where an
employee engages in consensual sexual
conduct with a supervisor and an
employment decision is based on this
conduct, Title VII is not implicated because
any benefits of the relationship are due to the
sexual conduct, rather than the gender, of the
employee.
Id. at 909.
The Eighth Circuit believed these sexual
favoritism precedents were relevant. The
court's unstated reasoning was that if a
specific instance of sexual favoritism does not
constitute gender discrimination, treating an
employee unfavorably because of such a

relationship does not violate the law either.
Yet the court acknowledged that cases
where the employee was treated less favorably
would be “more directly analogous.” Id. The
court then discussed a decision of the
Eleventh Circuit where an employee had been
terminated for being a perceived threat to the
marriage of the owner's son. Id. (discussing
Platner v. Cash & Thomas Contractors, Inc.,
908 F.2d 902, 903–05 (11th Cir.1990)). It
also cited three federal district court cases,
each of which had “concluded that
terminating an employee based on the
employee's consensual sexual conduct does
not violate Title VII absent allegations that
the conduct stemmed from unwelcome sexual
advances or a hostile work environment.” Id.
(citing Kahn v. Objective

Solution
s, Int'l, 86
F.Supp.2d 377, 382 (S.D.N.Y.2000);
Campbell v. Masten, 955 F.Supp. 526, 529
(D.Md.1997); Freeman v. Cont'l Technical
Serv., Inc., 710 F.Supp. 328, 331
(N.D.Ga.1988)).
After reviewing these precedents, the
Eighth Circuit found the owner had not
violated Title VII in terminating the employee
at his wife's behest. As the court explained,
“The ultimate basis for Tenge's dismissal was

not her sex, it was Scott's desire to allay his
wife's concerns over Tenge's admitted sexual
behavior with him.” Id. at 910.
In our case, the district court quoted at
length from Tenge, stating it found that
decision “persuasive.” However, Nelson
argues there is a significant factual difference
between the two cases. As the Eighth Circuit
put it, “Tenge was terminated due to the
consequences of her own admitted conduct
with her employer, not because of her status

2013)
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as a woman.” Id. The Eighth Circuit added a
caveat:
The question is not before us of whether
it would be sex discrimination if Tenge had
been terminated because Lori [the owner's
wife] perceived her as a threat to her marriage
but there was no evidence that she had
engaged in any sexually suggestive conduct.
[834 N.W.2d 69]

Id. at 910 n. 5. Nelson contrasts that situation
with her own, where she claims she “did not
do anything to get herself fired except exist as
a female.”
So the question we must answer is the
one left open in Tenge—whether an employee
who has not engaged in flirtatious conduct
may be lawfully terminated simply because
the boss's spouse views the relationship
between the boss and the employee as a
threat to her marriage. Notwithstanding the
Eighth Circuit's care to leave that question

unanswered, it seems odd at first glance to
have the question of whether the employer
engaged in unlawful discrimination turn on
the employee's conduct, assuming that such
conduct (whatever it is) would not typically be
a firing offense. Usually our legal focus is on
the employer's motivation, not on whether
the discharge in a broader sense is fair. Title
VII and the Iowa Civil Rights Act are not
general fairness laws, and an employer does
not violate them by treating an employee
unfairly so long as the employer does not
engage in discrimination based upon the

employee's protected status.
In some respects, the present case
resembles Platner. There a business owner
chose to terminate a female employee who
worked on the same crew as the business
owner's son, after the wife of the business
owner's son became “extremely jealous” of
her. Platner, 908 F.2d at 903. The district
court found that the son was “largely to blame
for fueling [the wife's] jealousy,” and that the
plaintiff's conduct was “basically blameless
and no different from that of the male

employees.” Id. Nonetheless, the Eleventh
Circuit found no unlawful discrimination had
occurred:
It is evident that Thomas, faced with a
seemingly insoluble conflict within his family,
felt he had to make a choice as to which
employee to keep. He opted to place the
burden of resolving the situation on Platner,
to whom he was not related, and whose
dismissal would not, as firing Steve obviously
would, fracture his family and its
relationships. It is thus clear that the ultimate
basis for Platner's dismissal was not gender

but simply favoritism for a close relative.
Id. at 905. Significantly, although Dr. Knight
discusses Platner at some length in his
briefing, Nelson does not refer to the decision
in her briefing or attempt to distinguish it.4
[834 N.W.2d 70]
Nelson does, however, have three
responses to Dr. Knight's overall position.
First, she does not necessarily agree with
Tenge. She argues that any termination
because of a supervisor's interest in an
employee amounts to sex discrimination:

“Plaintiff's sex is implicated by the very
nature of the reason for termination.” Second,
she suggests that without some kind of
employee misconduct requirement, Dr.
Knight's position becomes simply a way of
enforcing stereotypes and permitting
pretexts: The employer can justify a series of
adverse employment actions against persons
of one gender by claiming, “My spouse was
jealous.” Third, she argues that if Dr. Knight
would have been liable to Nelson for sexually
harassing her, he should not be able to avoid

liability for terminating her out of fear that he
was going to harass her.
2013)
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Nelson's arguments warrant serious
consideration, but we ultimately think a
distinction exists between (1) an isolated
employment decision based on personal
relations (assuming no coercion or quid pro
quo), even if the relations would not have

existed if the employee had been of the
opposite gender, and (2) a decision based on
gender itself. In the former case, the decision
is driven entirely by individual feelings and
emotions regarding a specific person. Such a
decision is not gender-based, nor is it based
on factors that might be a proxy for gender.
The civil rights laws seek to insure that
employees are treated the same regardless of
their sex or other protected status. Yet even
taking Nelson's view of the facts, Dr. Knight's
unfair decision to terminate Nelson (while
paying her a rather ungenerous one month's

severance) does not jeopardize that goal. As
the Platner court observed, “ ‘[W]e do not
believe that Title VII authorizes courts to
declare unlawful every arbitrary and unfair
employment decision.’ ” Id. at 905 (quoting
Holder v. City of Raleigh, 867 F.2d 823, 825–
26 (4th Cir.1989)).
Nelson's viewpoint would allow any
termination decision related to a consensual
relationship to be challenged as a
discriminatory action because the employee
could argue the relationship would not have

existed but for her or his gender. This logic
would contradict federal caselaw to the effect
that adverse employment action stemming
from a consensual workplace relationship
(absent sexual harassment) is not actionable
under Title VII. See, e.g., Benders v. Bellows
& Bellows, 515 F.3d 757, 768 (7th Cir.2008)
(holding that allegations that an employee's
termination was based on the owner's desire
to hide a past consensual relationship from
his wife were “insufficient to support a cause
of action for sex discrimination”); see also
Blackshear v. Interstate Brands Corp., No.

10–3696, 2012 WL 3553499, at *3 (6th
Cir.2012) (affirming summary judgment for
the employer where the employee presented
evidence that she was treated unfairly due to
her supervisor's jealousy of her relationship
with another employee, and noting that such
“personal animus ... cannot be the basis of a
discrimination claim under federal or Ohio
law”); West v. MCI Worldcom, Inc., 205
F.Supp.2d 531, 544–45 (E.D.Va.2002)
(granting summary judgment to an employer
when an employee was removed from a

project because of a
[834 N.W.2d 71]
supervisor's animosity toward the employee
over her termination of their consensual
relationship but there was no evidence the
supervisor had made unwanted advances to
the employee following the termination of
that relationship).
Nelson raises a legitimate concern about
a slippery slope. What if Jeanne Knight
demanded that her spouse terminate the
employment of several women? Of course, a
pretext does not prevail in a discrimination

case. See St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 515, 113 S.Ct. 2742, 2751–52, 125
L.Ed.2d 407, 421–22 (1993) (discussing how
a plaintiff can prove that an employer's
reason for a firing was not legitimate, but a
pretext for discrimination). If an employer
repeatedly took adverse employment actions
against persons of a particular gender, that
would make it easier to infer that gender and
not a relationship was a motivating factor.
Here, however, it is not disputed that Jeanne
Knight objected to this particular relationship

as it had developed after Nelson had already
been working at the office for over ten years.
It is likewise true that a decision based
on a gender stereotype can amount to
unlawful sex discrimination. Price
Waterhouse v. Hopkins, 490 U.S. 228, 251,
109 S.Ct. 1775, 1791, 104 L.Ed.2d 268, 288
(1989) (“As for the legal relevance of sex
stereotyping, we are beyond the day when an
employer could evaluate employees by
assuming or insisting that they matched the

2013)
-7-
stereotype associated with their group, for
[i]n forbidding employers to discriminate
against individuals because of their sex,
Congress intended to strike at the entire
spectrum of disparate treatment of men and
women resulting from sex stereotypes.”
(Citation and internal quotation marks
omitted.)), superseded by statute, Civil Rights
Act of 1991, Pub.L. No. 102–166, 105 Stat.
1071, 1075–76, as recognized in Univ. of Tex.

Sw. Med. Ctr. v. Nassar, –––U.S. ––––, –––
–, 133 S.Ct. 2517, 2526, 186 L.Ed.2d 503, –––
– (2013); see also City of L.A., Dep't of Water
& Power v. Manhart, 435 U.S. 702, 707, 98
S.Ct. 1370, 1375, 55 L.Ed.2d 657, 664–65
(1978) (“It is now well recognized that
employment decisions cannot be predicated
on mere ‘stereotyped’ impressions about the
characteristics of males or females.”);
Schwenk v. Hartford, 204 F.3d 1187, 1202
(9th Cir.2000) (“Discrimination because one
fails to act in the way expected of a man or

woman is forbidden under Title VII.”). If
Nelson could show that she had been
terminated because she did not conform to a
particular stereotype, this might be a different
case. But the record here does not support
that conclusion. It is undisputed, rather, that
Nelson was fired because Jeanne Knight,
unfairly or not, viewed her as a threat to her
marriage.5
The present case can be contrasted with
another recent Eighth Circuit decision. In
[834 N.W.2d 72]
Lewis v. Heartland Inns of America, L.L.C., a

female front desk employee at a hotel claimed
she lost her job because she did not have the
“Midwestern girl look.” 591 F.3d 1033, 1037
(8th Cir.2010). As the court explained, “The
theory of [Lewis's] case is that the evidence
shows Heartland enforced a de facto
requirement that a female employee conform
to gender stereotypes in order to work the A
shift.” Id. In fact, the evidence showed that
motel management later procured video
equipment so they could observe the
appearance of front desk applicants prior to

hiring. Id. at 1042. The Eighth Circuit
reversed the district court's grant of summary
judgment to the employer and remanded for
trial. Id. However, the critical difference
between Lewis and this case is that Nelson
indisputably lost her job because Dr. Knight's
spouse objected to the parties' relationship.
In Lewis, by contrast, no relationship existed.
Nelson also raises a serious point about
sexual harassment. Given that sexual
harassment is a violation of
antidiscrimination law, Nelson argues that a
firing by a boss to avoid committing sexual

harassment should be treated similarly.6 But
sexual harassment violates our civil rights
laws because of the “hostile work
environment” or “abusive atmosphere” that it
has created for persons of the victim's sex.
See, e.g., Faragher v. City of Boca Raton, 524
U.S. 775, 786–90, 118 S.Ct. 2275, 2283–84,
141 L.Ed.2d 662, 675–78 (1998). On the other
hand, an isolated decision to terminate an
employee before such an environment arises,
even if the reasons for termination are unjust,
by definition does not bring about that

atmosphere.7
As a Michigan appellate court observed
regarding a male employee's claim that he
had been subjected to sex discrimination:
We do not read the [Michigan Civil
Rights Act or CRA] to prohibit conduct based
on romantic jealousy.... Interpreting the
CRA's prohibition of discrimination based on
sex to prohibit conduct based on romantic
jealousy turns the CRA on its head. The CRA
was enacted to prevent discrimination
because of classifications specifically
enumerated by the Legislature and to

eliminate the effects of offensive or
demeaning stereotypes, prejudices, and
biases. It is beyond reason to conclude that
plaintiff's status as the romantic competition
to the woman Vajda sought to date places
plaintiff within the class of individuals the
Legislature sought to protect when it
2013)
-8-
prohibited discrimination based on sex under

the CRA.
Plaintiff proceeded to trial on a theory of
discrimination based on romantic jealousy.
Plaintiff did not claim and the evidence did
not establish that plaintiff was required to
submit to sexually-based harassment as a
condition of employment. Nor did the
evidence presented at trial support a theory of
gender-based discrimination. Plaintiff
established, at most, that Vajda's alleged
adverse treatment of plaintiff was based on
plaintiff's relationship with Goshorn, not

plaintiff's gender. Vajda may have had a
romantic purpose in initially pursuing
Goshorn and may, as the trial court surmised,
have intended to eliminate plaintiff so that he
could pursue Goshorn's affections. However,
Vajda's alleged harassment was not conduct
that is proscribed
[834 N.W.2d 73]
by the CRA because it was not gender-based.
Indeed, if Vajda's motive was to win the
affection of Goshorn, it would not matter if
the person Vajda perceived to be standing in
his way was male or female. As such, it is

evident that plaintiff's gender was not the
impetus for Vajda's alleged conduct, but
rather was merely coincidental to that
conduct.
Barrett v. Kirtland Cmty. Coll., 245
Mich.App. 306, 628 N.W.2d 63, 74 (2001)
(citations omitted); see also Huffman v. City
of Prairie Vill., 980 F.Supp. 1192, 1199
(D.Kan.1997) (“Plaintiff suggests that the
actions taken by Lt. Young as a result of Lt.
Young's beliefs concerning plaintiff's
relationship with another police officer

constitute gender discrimination because
such actions would not have been taken
against plaintiff but for her gender. We
cannot agree with plaintiff's expansive
…
Task Groups in the School Setting:
Promoting Children’s Social and
Emotional Learning
Patricia Van Velsor
San Francisco State University
Through social and emotional learning (SEL), individuals
develop skill in
negotiating relationships successfully and expressing emotions
appropriately.
The socially and emotionally intelligent child reaps benefits in

school and later
life. Counselors are best qualified to promote children’s SEL
and the task group
in the classroom provides an excellent opportunity for them to
do so. In the task
group, students can learn and practice crucial skills in vivo
while they work
together to complete a task. The counselor’s strategic attention
to promoting task
completion while facilitating SEL can serve to highlight the
benefits of group work
in the school learning environment.
Keywords: schools; social and emotional learning; task groups
Because humans are social beings, they spend a great deal of
time
interacting with others and much of that interaction takes place
in
groups. As Sonstegard and Bitter (1998) so aptly stated, ‘‘to be
human
is to ‘live’ in groups’’ (p. 251). The group (e.g., family, peer)
serves as
the ‘‘primary socializing influence’’ in children’s development
(Kulic,

Horne, & Dagley, 2004) and the nature of the social
environment in
those groups leads children down a path toward either prosocial
or
antisocial behavior and beliefs (Hawkins, Smith, & Catalano,
2004).
Children develop social skills and prosocial behaviors through
social and emotional learning (SEL). Although there are various
defi-
nitions of SEL, Zins, Bloodworth, Weissberg and Walberg
(2007)
define it succinctly as ‘‘the process through which children
enhance
their ability to integrate thinking, feeling, and behaving to
achieve
important life tasks’’ (p. 6). Five competency areas—self-
awareness,
self-management, social awareness, relationship skills, and
responsible
Patricia Van Velsor, Ph.D., is an assistant professor in the
Department of Counseling at
San Francisco State University. Correspondence concerning this
article should be

addressed to Patricia Van Velsor, Department of Counseling,
San Francisco State
University, BH 524, 1600 Holloway Avenue, San Francisco, CA
94132. E-mail:
[email protected]
THE JOURNAL FOR SPECIALISTS IN GROUP WORK, Vol.
34 No. 3, September 2009, 276–292
DOI: 10.1080/01933920903033495
# 2009 ASGW
276
decision-making—are basic to negotiating school, work, and
life
responsibilities effectively (Collaborative for Academic, Social,
and
Emotional Learning, 2000–2009).
Social and emotional intelligence, acquired through SEL, has
been
associated with various positive outcomes in school and life. A

socially
and emotionally intelligent child is less likely to develop
aggressive-
ness, depression, and=or violent behaviors (Poulou, 2005).
Children
who develop social and emotional intelligence are also more
resistant
to difficulties related to drugs, teen pregnancy, and gangs (Elias
et al.,
1997). Moreover, variations in children’s social and emotional
func-
tioning significantly predict current and later academic
achievement
(Greenberg, Kusché, & Riggs, 2004; Parker et al., 2004).
The small group in the school setting provides an excellent
opportu-
nity for counselors to enhance children’s positive mental health
through SEL. Children can better their social skills, unlearn
inappropriate social behaviors, and try out new skills in a safe
environment (Akos, Hamm, Mack, & Dunaway, 2007;
Thompson &
Henderson, 2006). Generally, the small group format used with
chil-
dren is psychoeducational (Corey & Corey, 2006) and a

common
approach to SEL in the schools is to pull targeted children out
of the
classroom to learn about appropriate skills and practice those
skills
in a small group. Another approach, however, is to make use of
the
task group, which focuses on the application of group process
princi-
ples to task completion (Corey & Corey, 2006). If used in the
classroom
setting, the task group can offer children the opportunity to
learn and
apply social and emotional skills and behaviors in a real life
situation
as they work together to accomplish an identified task.
Moreover,
when conducted in the classroom setting, all children can profit
from
the opportunity to enhance their social and emotional
intelligence. The
overall goal is to promote SEL for a broad range of children,
which in
turn can lead to other positive outcomes.

When considering the task group in the school setting, it makes
sense that students could benefit in three ways. First, the task
group
affords children the opportunity to learn about a topic as they
work
together on a project of educational importance. Second,
students have
the chance to acquire valuable social and emotional skills for
working
in groups related to cooperation, collaboration, and mutual
respect.
Third, students may well gain a sense of accomplishment when
the
task is completed, hopefully bolstering self-esteem.
The purpose of this article is to encourage counselors to
embrace the
task group model in the classroom setting to promote the SEL of
students in vivo and to help equip all students with the social
and
emotional tools necessary to work cooperatively and
collaboratively
in a group. In order to implement the task group, counselors
must

Van Velsor/TASK GROUPS IN THE SCHOOL SETTING 277
develop a clear understanding of this approach and its multiple
benefits in the classroom setting. With this knowledge,
counselors
can then determine ways to identify appropriate tasks for school
groups, and develop strategies to facilitate both task completion
and
group process for optimal SEL.
UNDERSTANDING THE TASK GROUP MODEL
AND ITS BENEFITS
Before initiating the task group in schools, it is important to
under-
stand the goals of a task group. The main goal of the group is
completing
a task (e.g., a work project, event planning) rather than
changing the
individual for therapeutic reasons or personal growth (Gladding,
2008).
However, successful functioning of the task group requires
attention

to the principles of group dynamics aimed at accomplishing the
task
and improving interpersonal interaction in the process (Corey &
Corey,
2006; Gladding, 2008). Although teachers may already assign
tasks to
small groups or make use of small group learning in the
classroom, they
may lack the necessary skills to facilitate SEL in the group
process
(Elias, Bruene-Butler, Blum, & Schuyler, 1997). Counselors,
however,
have training in group dynamics and process and can utilize that
knowl-
edge to promote SEL as children work together to complete a
task.
The task group in a school is different from the typical one in
an
organization where each member takes responsibility and is
accounta-
ble for his or her own contribution to the overall effort
(Katzenbach &
Smith, 2003). Instead children in the schools can benefit from
the task

group that operates like a team. Although teams, like other task
groups, focus on results and develop individual products, teams
are
more interdependent and more collaborative (Brown, 2009:
Gladding
2008; Stanley, 2006). In the team model, there are shared
leadership
responsibilities and accountability for the team product; that is,
the
team members do ‘‘real work together’’ (Johnson & Johnson,
2009,
p. 527). All students in the schools can benefit from working
together
and developing the abilities necessary to function as part of a
team.
Because all students can profit from refining their social and
emotional skills, the task group in the school does not
necessarily
target students with difficulties. Use of this approach is
predicated on
the idea that a primary goal of counseling is to help all children
‘‘learn
to deal with life’’ (T. Gutkin, personal communication,
December 2,

2008). Task groups are indeed a part of life; they are
omnipresent in
American culture and part of everyday experience (Conyne,
Crowell,
& Newmeyer, 2008) in schools, churches, work places, and
community
settings. The skills learned can help children fulfill their roles
278 THE JOURNAL FOR SPECIALISTS IN GROUP WORK /
September 2009
successfully in family, school, friend, and work groups
(Goleman,
1995). Promoting SEL for all students aligns with the Executive
Summary of the American School Counselor Association
(ASCA,
2005), which directs school counselors to ‘‘identify and deliver
the
knowledge and skills all students should acquire’’ (p. 1).
Additionally,
SEL aligns with the public school’s mission to ‘‘assist in the
socializa-
tion of the young,’’ identified in a U. S. Supreme Court case

(i.e.,
Wisconsin V. Yoder) (Adelman & Taylor, 2003, p. 85).
Another noteworthy benefit of the task group in the classroom
is
that it allows students to learn skills in vivo. Although teaching
social
and emotional skills is important; providing children the
opportunity
for ‘‘real-world application’’ of those skills is critical (Elias,
2004).
During transactions to complete a task, interpersonal exchanges
hap-
pen naturally in the classroom, that is, authentic interaction
occurs.
As differences in ideas and issues related to completing the task
surface and accompanying affect emerges, counselors can
facilitate
the interchanges quickly (Barratt & Kerman, 2001). The
counselor is
at hand to help children manage their emotions, effectively
navigate
their interactions, and successfully negotiate their differences
for opti-
mal SEL. For students with behavioral concerns, who may not

be able
to transfer skills from the counseling group to the classroom
(Clark &
Breman, 2009), this real world experience may be essential to
their
social and emotional development.
Students at risk for difficulties may benefit in other ways by
culti-
vating social and emotional abilities in the classroom. In a
counseling
group for social skill development, targeted students may have
similar
difficulties and inadvertently learn inappropriate behaviors from
each
other. In the classroom setting, however, students with less
developed
social and emotional skills interact with students at higher skill
levels
and can learn informally from the modeling of other students.
Lopes
and Salovey (2004) identified informal learning, where students
learn
behaviors through ‘‘experience, modeling, and observing’’ as a
valuable way to promote SEL (p. 78).

The task group as proposed here may also serve to highlight the
usefulness of group work in learning. Social factors often
influence
learning, because effective learning frequently involves the
ability to
communicate, interact, and collaborate with co-learners as well
as tea-
chers, peers, and families (McCombs, 2004; Zins et al., 2007).
The task
group offers a fertile environment for students to develop
positive
social relationships as they develop their academic skills. As
children
learn to collaborate and function interdependently in the task
group, a
better fit or ‘‘improved ecological concordance’’ between
students and
their school environment emerges, which in turn can improve
student
success both in and out of schools (Conyne & Mazza, 2007).
Successful

use of the task group by the counselor may then motivate
teachers
to adopt the small group as part of the learning environment for
children.
IDENTIFYING A FOCUS FOR THE TASK GROUP
Although a significant goal in utilizing the task group is to
promote
social and emotional learning, it is critical for the counselor to
identify
a project that clearly incorporates an aspect of the school
mission. For
example, a project might focus on an academic goal of a
particular
classroom or grade level (e.g., meeting a specific curriculum
objective),
or a school or community goal (e.g., conducting a service
learning
activity).
The list of projects that could be implemented to address SEL in
a

task group is endless and any activity that requires student
collabora-
tion in a small group could work. As an example, the literature
circle, a
language arts activity designed to engage students in reflection
and
critical thinking about reading (Daniels, 2001), could provide
an excel-
lent opportunity for incorporating SEL; because it can be
adapted for
all age levels, already uses a small group format, and has been
applied
in both mathematics (Kridler & Moyer-Packenham, 2008) and
science
(Straits, 2007). In a typical model, the teacher assigns roles
(e.g., facil-
itator, illustrator) and has students work on their tasks
independently
before coming together for discussion. In the task group model,
how-
ever, the teacher extends the process by assigning a project. The
task
can be as simple as making a poster to represent the feelings of
differ-
ent characters in a story or as involved as creating a video to

explore
character identity development related to the events in the
reading.
The students then decide on what roles are necessary and how
they
need to work together to complete the task. Although schools
most
likely will already have designated readings within their
curriculum,
the counselor may want to suggest books from the Bibliotherapy
Edu-
cation Project
(http://library.unlv.edu/faculty/research/bibliotherapy/),
which offers an excellent list of books that focus on both
counseling
and education topics.
Counselors who have not been teachers may balk at the idea of
focusing a group on an academic task; however, the counselor
need
not be an expert in an academic area. The teacher provides the
aca-
demic expertise while the counselor promotes the social and
emotional
development. The logistics will require close collaboration

between the
counselor and the teacher to create a suitable arrangement.
After the
task has been identified, the counselor may circulate among
various
task groups or work with one group at a time while the teacher
works
September 2009
with the remaining students. In the task group, the counselor
can
serve as a co-learner while he or she weaves SEL skill
development
into the process and facilitates group interactions aimed at
successful
task completion.
Working in the classroom may represent a paradigm shift for
counselors. However, it is consistent with a new ‘‘inclusion’’
model of
school counseling suggested by Clark and Breman (2009). This

model
requires that all students receive counseling support through
innova-
tive interventions in classroom settings and requires counselors
to col-
laborate and consult closely with teachers. The task group
model
proposed here complements the Clark and Breman model,
because it
necessitates collaboration with teachers and other school
personnel
to identify a suitable project and involves implementation of the
task
group in the classroom.
The best way to identify an appropriate task is through
familiarity
with the school context. The school counselor who has been in
the
school will already have intimate knowledge of school culture,
but will
still need to spend time observing school activities and
soliciting input
from others. The counselor new to the school, on the other
hand, must

become well acquainted with the school environment by getting
to
know, first students and school personnel (e.g., teachers,
administra-
tors, teachers), and then parents and community members. What
are the educational goals that the teachers share? What is
necessary
to promote the achievement of the student body? For example,
if there
are a large number of students living in poverty, what projects
would
support their unique needs—in the classroom, the school, and
the
community? Immersion in the culture—both school and
surrounding
community—allows the counselor not only to identify projects
that
support the school mission but also to design tasks that are
sensitive
to values of the population served. Service learning projects
that
require collaborative efforts offer excellent opportunities for
addres-
sing community needs and, at the same time, enhancing
students’

social and emotional abilities. For example, small groups of
younger
students may decide on a gift appropriate for a local senior
center,
design the necessary steps to make their gifts, and finally,
create
the gifts. Older students may research community needs and
then
work together in small groups to design and carry out
community pro-
jects. Although there are a variety of websites that describe
school
service learning projects, one particularly comprehensive list
for both
elementary and secondary levels comes from Mesa Service
Learning
(http://www2.mpsaz.org/msl/about/).
The most important school personnel with whom to collaborate
are
teachers, because counselors will need their support to carve out
time
and space for the task group. Common complaints of teachers
are that

SEL activities take time away from an already overloaded
academic
schedule (Elias, Bruene-Butler, Blum, & Schuyler, 2000;
Mildener &
Keane, 2006). Careful selection of task group focus, however,
helps
sidestep the criticism that time spent on social and emotional
skill
development usurps valuable academic time. Rather, teachers
view
the task as supporting their efforts rather than auxiliary to their
academic goals. At the same time, working closely with
teachers in
the classroom may stimulate more positive attitudes toward SEL
activities and small group learning.
With a task identified, a counselor must not only assist children
in
completing the task, but also help them to understand the
importance
of the group process in task completion. Effective SEL in the

task
group requires that children learn cooperation, social skills, and
prosocial values (Johnson & Johnson, 2004).
FACILITATING THE TASK GROUP FOR OPTIMAL SEL
A counselor facilitating a task group with children for optimal
SEL
must perform a variety of functions. Unfortunately, in a recent
survey
of 802 school counselors, many participants reported a lack of
group
training aimed at working with children and adolescents in the
schools (Steen, Bauman, & Smith, 2008). Although the
following infor-
mation is not meant to substitute for group training, it does
provide an
overview of functions that school counselors should feel
comfortable
performing in order to facilitate a task group successfully for
SEL.
The primary functions involve fostering positive
interdependence
through team building and promoting interpersonal process by
setting

appropriate structure and bolstering skill development. The
literature
on process in children’s groups is scant (Leichtentritt &
Shechtman,
1998; Shechtman & Yanov, 2001); however, along with the
literature
on task groups with adults, it provides some direction for the
counselor
carrying out these functions.
Building a Team
Simply assigning a task and asking children to work together
does not assure that they will become a team (Prichard, Bizo, &
Stratford, 2006). Therefore it is the responsibility of the
counselor to
incorporate ways to build group cohesiveness. In an
investigation of
children’s groups, child participants identified group
cohesiveness—
encouragement, support, and acceptance from others—as the
most
important factor in their group experience (Shechtman & Gluk,
2005). Thus, it is important to help children build new
relationships

September 2009
or strengthen existing relationships around working on the task.
So,
although task completion is primary, failure to attend to
relationships
of students could result in negative outcomes for task
completion and
learning.
Students in a school may already have formed relationships;
how-
ever, counselors will need to develop activities focused on
building
interdependent relationships and identifying appropriate norms
of
behavior. Effective task groups devote time to learning about
one
another, to culture building, and to nurturing collaboration and
coop-
eration (Hulse-Killacky, Killacky, & Donigian, 2001). Because

team
building involves learning prosocial behavior, norms should
include
discussion of respect for others and promotion of other
members’
efforts. Clear expectations for task completion and group
behavior will
enhance student learning related to completing the task and
acquiring
interpersonal skill in doing so.
Establishing Appropriate Structure
To promote SEL through the interpersonal process of the group,
counselors must establish appropriate structure. Counselors can
do
so by attending to the developmental level of the children in the
group
(Rosenthal, 2005); younger children need more structure. For
all chil-
dren, counselors need to provide more structure early in the
group’s
development. Group facilitators optimize children’s experiences
in
groups when they provide a safe environment for children to try

out
behaviors (Mayerson, 2000) and the appropriate level of
structure
helps provide that safe space.
An ideal structure for a task group involves balancing content
and
process (Hulse-Killacky, Kraus, & Schumacher, 1999). The
content
component of a group refers to the information shared; in a task
group,
the counselor should make sure that all children clearly
understand
the purpose of the group and the goals related to the task.
Addition-
ally, the counselor should pay attention to the content that
children
share to get a sense of each child’s strengths and how he or she
can
contribute to task completion. Too much attention to content in
a task
group, however, may actually interfere with progress toward
complet-
ing the task (Hulse-Killacky et al., 1999). The process
component of a

task group deserves equal attention. Yalom (2002) defines
process as,
‘‘the nature of the relationship between the people in the
interaction’’
(p. 109). As it applies to the task group, process refers to the
relation-
ships between and among children and how those relationships
promote or inhibit task completion. By attending to the process,
coun-
selors can make sure that all children share their ideas,
experiences,
and thoughts and contribute to accomplishing the task.
In a successful group, the counselor does not attend to the
process
alone; he or she makes sure that participants also attend to that
pro-
cess. From the onset of the group, the counselor structures a
reflective
environment in which children evaluate the interactions and
dynamics of the group (Barratt & Kerman, 2001). The counselor

fre-
quently encourages children to examine their relationships to
identify
how well they are working together and how they can better
their
effectiveness (Johnson & Johnson, 2009).
Although structure is essential to group work with children,
facili-
tators can best promote children’s SEL by knowing when to
allow free-
dom within the structure. An important value of group work—
that it
reflects real life most accurately (Akos, 2000)—is lost if a
group is too
structured. A challenge is finding the balance between
permissiveness
and appropriate structure and limits. In an exploratory study of
dynamics in children’s therapy groups, Mayerson (2000) found
that
facilitators’ willingness to join the play process, when
appropriate,
contributed to positive outcomes. Applying this to the task
group, a
counselor must be flexible and fluid in stepping forward to take

the
leadership role and stepping back to let the children lead.
Johnson
and Johnson (2009) maintain that facilitators must decide when
to
direct the children’s group, be ‘‘a sage on the stage,’’ or to be
their
assistant, ‘‘a guide on the side’’ (p. 497). Children can lead
their own
group when they have developed the ability to reflect on their
indivi-
dual and group behaviors and the skills necessary for working
with
others.
Bolstering Skill Development
Important for the task group is development of skill in giving
feed-
back, making decisions together, and solving problems and
resolving
conflict. The ability to give constructive feedback sets the stage
for
the other skills. In a task group, timely feedback fosters team
develop-

ment; because it increases member motivation and provides data
to
help members work together effectively (Birmingham &
McCord,
2004). In a study of interpretative responses—confrontation,
interpre-
tation, and feedback—of preadolescents in groups, Shechtman
and
Yanov (2001) found that high quality feedback (i.e., direct and
honest
personal reaction) precipitated productive responses (i.e.,
exploration,
insight, or change) while high quality interpretation (supportive
explanation of one’s behavior, feelings, or thoughts) or
confrontation
(highlighting incongruencies) precipitated unproductive
responses
(e.g., resistance, agreement). The authors concluded that
minimizing
confrontation and maximizing high-quality feedback was most
helpful
in group work with children.
September 2009

The challenge in the task group lies in helping children learn to
give
constructive feedback (i.e., direct and honest personal reaction)
that
supports task completion. This begins with counselor modeling;
simply
by listening, paraphrasing, asking open questions, that is, using
basic
counseling skills, counselors provide a positive example for
children
and promote SEL. In using these skills, it is important that
counselors
attend to the age of the children in the group to adapt those
skills
appropriately (see Van Velsor, 2004). If children learn these
skills,
they help to create a safe environment and set the stage for
giving con-
structive feedback to each other related to task completion.
Drawing
from several task group models, Hulse-Killacky et al. (1999)
suggest

that members create guidelines for giving and receiving
feedback,
reflect on behaviors and interactions that support or inhibit the
group
work, and give clear feedback (i.e., using ‘‘I’’ statements,
speaking
directly to others). Initially the counselor will model and direct
appro-
priate communications, but children should eventually learn to
provide their own feedback. According to Sonstegard and Bitter
(1998), accurate feedback from children may facilitate the
group pro-
cess better than feedback from counselors.
Along with communication skills, children need to develop the
abilities necessary for decision making in task groups. Because
good
decision making depends on effective processing of emotions
(Bechara,
Damasio, & Bar-On, 2007), an important step is helping
children
to develop skill in monitoring emotions that arise when
differences
occur. In the task group, counselors can guide children in
regulating

their emotional reactions and applying self-control in
interpersonal
communication. Regulating emotion and gaining control gives
chil-
dren access to the clear thinking needed for problem solving
(Elias,
2004). Johnson and Johnson (1995) identified a helpful process
for
problem-solving negotiation, in which children (a) describe
what they
want and feel along with the rationale for those, (b) listen and
commu-
nicate understanding of other children’s perspectives, (c)
formulate
three optional plans, and (d) select a plan from those options.
This
model provides the opportunity for children to practice
perspective-
taking, which is foundational to the development of empathy
(Shapiro,
1997).
When problem solving among children breaks down and conflict
arises, the counselor will need to serve as mediator allowing
time for

cooling off as necessary, ensuring commitment to mediation,
and guid-
ing children through the problem-solving process (Johnson &
Johnson,
1995). Formalizing the agreement (e.g., with a handshake) is
part of
both problem solving and conflict resolution procedures.
Once counselors have provided strategies for decision making,
problem-solving, and conflict resolution, they must decide when
to
let children direct the process and when they need to intercede.
Some
group facilitators may tend to intervene quickly in any disputes,
conflict, or disagreement among children (Rosenthal, 2005)
denying
them the experience of solving issues on their own, and in turn
inhibit-
ing their SEL from the process. On the other hand, an
environment

that encourages creative and collaborative decision making,
problem
solving, and conflict resolution by children promotes their
optimal
social and emotional development.
PUTTING IT ALL TOGETHER
Designing a task group for the classroom will require
considerable
collaborative planning to identify what works with which
students
based on academic learning objectives as well as student
developmen-
tal level and culture. The counselor, in collaboration with the
teacher,
must decide how much advance psychoeducation the students
will
need related to decision making, problem solving, and conflict.
It is
always best to discuss conflict resolution procedures before a
heated
emotional situation arises.
Implementation would typically begin with a teacher describing

an
academic assignment. Using the literature circle example, the
teacher
asks students to rank a list of stories or books based on their
interests.
The teacher …
Womack v. Runyon, 147 F.3d 1298 (11th Cir. 1998)
-1-
Page 1298
147 F.3d 1298
77 Fair Empl.Prac.Cas. (BNA) 769,
73 Empl. Prac. Dec. P 45,463,
11 Fla. L. Weekly Fed. C 1653
Paul WOMACK, Plaintiff-Appellant,

v.
Marvin RUNYON, Jr., Defendant-
Appellee.
No. 97-8637.
United States Court of Appeals,
Eleventh Circuit.
July 28, 1998.
Page 1299
E. Kontz Bennett, Jr., Waycross, GA, for
Plaintiff-Appellant.
Harry Dixon, Jr., U.S. Atty., Melissa S.
Mundel, Asst. U.S. Atty., Savannah, GA, for
Defendant-Appellee.
Appeal from the United States District

Court for the Southern District of Georgia.
Before CARNES and HULL, Circuit
Judges, and HENDERSON, Senior Circuit
Judge.
PER CURIAM:
Paul Womack filed this action against
Marvin Runyon, Postmaster General of the
United States Postal Service, charging
unlawful discrimination because of his sex in
violation of Title VII of the Civil Rights Act of
1964. The United States District Court for the
Southern District of Georgia granted

Runyon's motion to dismiss. Womack filed
this appeal from that final judgment. We
affirm.
I. FACTS
Womack is a career employee of the
United States Postal Service. Early in 1987, he
applied for a position as carrier supervisor at
the Waycross, Georgia post office. Womack
had prior supervisory experience and training
at the time of his application. In March, 1987,
then Supervisor O.M. Lee instructed Womack
to begin training a co-employee, Jeanine
Bennett. Bennett and another employee,

Jerry Johnson, were also candidates for the
carrier supervisor position. Although
Womack was unanimously selected as best
qualified for the post by a review board, Lee,
the newly appointed Postmaster in Waycross,
selected Ms. Bennett for the assignment. 1
Womack alleges that he only learned that Lee
and Bennett had been engaged in a
consensual sexual relationship at the time Lee
selected Bennett as the carrier supervisor in
1996 just prior to his filing an administrative
complaint with the postal service's equal

opportunity office. 2
In January, 1997, Womack filed this
action claiming that Lee's failure to select him
for the supervisory position constituted
unlawful sex discrimination in violation of
Title VII. 3 Runyon moved to dismiss on the
ground that Title VII did not authorize any
relief from an adverse employment decision
predicated on the decision-maker's romantic
and/or sexual involvement with the
successful applicant. The district court agreed
and granted the motion to dismiss. Womack
appeals from the final judgment.

II. STANDARD OF REVIEW
We review the dismissal of a complaint
for failure to state a claim for relief de novo,
accepting all allegations in the complaint as
true and construing those allegations in the
light most favorable to the plaintiff. Lopez v.
First Union National Bank of Florida, 129
F.3d 1186, 1189 (11th Cir.1997). A complaint
may not be dismissed for failure to state a
claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of
his claim which would entitle him to relief. Id.

III. DISCUSSION
-2-
The sole issue on this appeal is whether
preferential treatment based on a consensual
relationship between a supervisor and an
employee constitutes a cognizable sex
discrimination cause of action under Title
VII. Womack contends that the affair between
Lee and Bennett was a substantial factor, if
not the real reason, for Bennett's selection for

this promotion. He argues that this rises to
the level of unlawful sex discrimination
because Bennett's sex was, for no legitimate
reason, the basis for Lee's decision to
promote her.
Page 1300
The Postmaster contends that the district
court correctly concluded that Title VII does
not encompass a claim based on favoritism
shown to a supervisor's paramour. He likens
such favoritism to nepotism and argues that,
while perhaps not fair, it is not actionable sex

discrimination. He points out that the
majority of courts that have considered the
matter have rejected such claims. 4
The leading case in this area is DeCintio
v. Westchester County Medical Center, 807
F.2d 304 (2nd Cir.1986), cert. denied, 484
U.S. 825, 108 S.Ct. 89, 98 L.Ed.2d 50 (1987).
In that case, seven male respiratory therapists
sued their employer, maintaining that a
woman was selected for a promotion because
she was involved in a romantic relationship
with the head of the department. The district
court concluded that the defendants' actions

violated both Title VII and the Equal Pay Act.
The United States Court of Appeals for the
Second Circuit reversed, holding that the
selection of the woman for a position paying a
higher salary based upon a consensual
romantic relationship with the department
head did not state a claim under either
statute. The court pointed out that the
plaintiffs were in exactly the same position as
other women who might have applied for the
advancement in rank. They were disfavored
not because of their sex but because of the

decision-maker's preference for his
paramour. Id. at 308.
As the Postmaster points out, the great
majority of courts which have addressed this
question have reached the same result. Thus,
in Becerra v. Dalton, 94 F.3d 145 (4th
Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct.
1087, 137 L.Ed.2d 221 (1997), the United
States Court of Appeals for the Fourth Circuit
held that allegations that the promoted
individual was having sexual relations with
the selecting officers did not state a claim for
sex discrimination violative of Title VII. See

also Taken v. Oklahoma Corporation
Commission, 125 F.3d 1366, 1369-70 (10th
Cir.1997)(same); Hennessy v. Penril
Datacomm Networks, Inc., 69 F.3d 1344,
1353-54 (7th Cir.1995)(same, in dicta);
Keenan v. Allan, 889 F.Supp. 1320, 1375 n. 6
(E.D.Wa.1995)(same), aff'd, 91 F.3d 1275 (9th
Cir.1996); Thomson v. Olson, 866 F.Supp.
1267, 1272 (D.N.D.1994)(same), aff'd, 56 F.3d
69 (8th Cir.1995).
The Equal Employment Opportunity
Commission, which is charged with enforcing

Title VII, has also reached the same
conclusion. In a policy guidance letter issued
in 1990, the agency opined that "Title VII
does not prohibit ... preferential treatment
based upon consensual romantic
relationships. An isolated instance of
favoritism toward a 'paramour' ... may be
unfair, but it does not discriminate against
women or men in violation of Title VII, since
both are disadvantaged for reasons other than
their genders." See EEOC Policy Guidance on
Employer Liability Under VII for Sexual
Favoritism, EEOC Notice No. 915-048

(January 12, 1990).
Womack relies on the decision of the
United States Court of Appeals for the District
of Columbia Circuit in King v. Palmer, 778
F.2d 878 (D.C.Cir.1985), in support of his
position. In that case, a nurse at the District
of Columbia jail contended that she was
passed over for a promotion, despite being
-3-

better qualified, in favor of a woman who was
involved in an intimate relationship with the
Chief Medical Officer. The district court
granted judgment in favor of the defendants
because the plaintiff failed to offer direct
evidence of an explicit sexual relationship.
The appellate court found that the plaintiff
had met her evidentiary burdens in the case
and remanded for entry of a judgment in
favor of the plaintiff. At the outset, however,
the court noted that the parties agreed that
the plaintiff's complaint stated a cause of
action cognizable "under statutes prohibiting

sex discrimination in employment." In
denying rehearing en banc, the court noted
that "no party challenged the application of
Title VII on appeal, and the issue was not
briefed or argued to the panel." Id. at 883.
Accordingly, King is not persuasive authority
on this question.
Page 1301
Based on the foregoing, we conclude that
the district court correctly dismissed
Womack's complaint for failure to state a
claim. The judgment of the district court is

AFFIRMED.
---------------
1 The defendant does not concede that Lee
was the official who selected Bennett for the
position. In support of his motion to dismiss,
Runyon submitted the "Declaration" of John
W. Hill which stated that he "was the
selecting official for a relief supervisor
position for which Mr. Womack and Mrs.
Bennett competed in 1987." (R.1:6, Exh. A).
Since this appeal is from the district court's
order granting the defendant's motion to
dismiss, however, the allegations of the

complaint must be taken as true.
2 That complaint was dismissed as untimely.
(R.1:6, Exh. B).
3 42 U.S.C. § 2000e et seq.
4 The Postmaster General also argues that the
district court lacked subject matter
jurisdiction to entertain Womack's challenge
based on Postal Service and other regulations.
Since those regulations played no role in the
district court's disposition of the case,
however, it is not necessary to address that
argument.

Smith v. Purple Frog, Inc., 2019 IL App (3d) 180132 (Ill. App.,
2019)
-1-
2019 IL App (3d) 180132
JEFFREY SMITH, Plaintiff-Appellant,
v.
THE PURPLE FROG, INC., d/b/a/
POTTSIE'S PLACE, Defendant-
Appellee.
Appeal No. 3-18-0132

APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
October 16, 2019
Appeal from the Circuit Court of the 3rd
Judicial Circuit, Tazewell County, Illinois.
Circuit No. 15-L-119
Honorable Michael Risinger, Judge,
Presiding.
JUSTICE HOLDRIDGE delivered the
judgment of the court, with opinion.
Presiding Justice Schmidt and Justice
O'Brien concurred in the judgment and

opinion.
OPINION
¶ 1 The Plaintiff, Jeffrey Smith, sued the
defendant, The Purple Frog, Inc., d/b/a/
Pottsie's Place (Pottsie's), seeking to recover
for injuries he sustained when he came in
contact with a wall heater on the defendant's
premises. Smith alleged that Pottsie's was
liable for negligence under a premises liability
theory and also because it had negligently
installed the wall heater in a location where
its customers could come in contact with it.
The trial court granted summary judgment in

Pottsie's favor. This appeal followed.
Page 2
¶ 2 FACTS
¶ 3 Pottsie's is a bar located in Pekin, Illinois.
On December 2, 2014, Smith went to Pottsie's
at approximately 11:30 p.m. Smith had been
to Pottsie's approximately six times prior to
that evening. Pottsie's has a beer garden that
functions as an outdoor smoking area. Shortly
before midnight, Smith went outside to the
beer garden to smoke. He did not bring his
coat. There was a wall-mounted gas heater

inside the beer garden which was on at the
time Smith went outside. A sign attached to
the wall over the heater read, "Heater is hot.
We are not responsible for your silly ass
getting too close!! Thanks, Pottsie's". Smith
voluntarily backed up toward the heater to
keep warm. He was swaying back and forth
trying to "loosen up" his hips. Eventually, he
leaned back to scratch his shoulder on the
wall/heater glass and his flannel shirt caught
fire. Smith eventually removed his flannel
shirt and t-shirt, both of which continued to
burn after removal. Smith suffered injuries

during the incident.
¶ 4 Notes written by an EMT who treated
Smith indicate that Smith had consumed
eight beers that evening. Although Smith does
not recall making that statement to the EMT,
he admits that he was intoxicated that
evening.
¶ 5 Smith estimated that he had been in
Pottsie's beer garden approximately 18 times
prior to the December 2, 2014, incident. He
acknowledged that he was aware of the
warning sign placed above the heater and had

seen it on each of the prior occasions that he
was in Pottsie's beer garden. Although he had
leaned on the heater once or twice before, he
had never experienced any incident with the
heater prior to December 2, 2014. However,
Smith knew that the heater got hot based on
his prior encounters with the heater. Smith
swore that, at the time of the incident, the
heater's glass was "cherry red hot" but there
was no open flame emanating from the
heater.
Page 3

2019)
-2-
¶ 6 The owner-operators of Pottsie's had
purchased the gas heater at issue and had an
unidentified customer of theirs run the gas
lines to the heater.1 The manufacturer's
manual that came with the heater stated that
the heater must not be placed in a location
where people could walk near it. However,
the heater was installed in Pottsie's beer
garden at torso height near some picnic

tables. The path between the picnic tables and
the heater was only wide enough for one
person to pass through. There is no evidence
that whoever installed the heater was given
the manual that came with the heater.
¶ 7 Smith filed a complaint sounding in
negligence. He alleged that Pottsie's was
liable under premises liability principles
because it did not adequately warn Smith of
the hazard posed by the heater or otherwise
protect him from such hazard. Smith also
alleged that Pottsie's negligent installation of

the heater in an area where patrons could
come into physical contact with it proximately
caused his injuries.
¶ 8 Pottsie's moved for summary judgment.
The trial court held that: (1) the heater's
manual did not create a duty of care; and (2)
"Smith was fully aware of the notice and
undertook his own actions voluntarily."
Accordingly, the trial court granted Pottsie's
motion and entered summary judgment in
Pottsie's favor. This appeal followed.
¶ 9 ANALYSIS
¶ 10 "Summary judgment is appropriate if the

pleadings, depositions, and admissions on
file, *** show that there is no genuine issue as
to any material fact and that the moving party
is entitled to a judgment as a matter of law."
(Internal quotation marks omitted.)
Morrissey v.
Page 4
Arlington Park Racecourse, LLC, 404 Ill.
App. 3d 711, 724 (2010). In determining
whether the moving party is entitled to
summary judgment, the court must construe
the pleadings and evidentiary material in the

record strictly against the moving party. Id.
To survive a motion for summary judgment, a
plaintiff need not prove his case, but he must
present a factual basis that would arguably
entitle him to a judgment. Wade v. Wal-Mart
Stores, Inc., 2015 IL App (4th) 141067, ¶ 12.
We review a trial court's decision to grant or
deny a motion for summary judgment de
novo. Id.; see also Bruns v. City of Centralia,
2014 IL 116998, ¶ 13.
¶ 11 In a negligence action, the plaintiff must
plead and prove the existence of a duty owed
by the defendant to the plaintiff, a breach of

that duty, and injury proximately resulting
from the breach. Bruns, 2014 IL 116998, ¶ 12.
Whether a duty exists is a question of law for
the court to decide. Id. ¶ 13; Henderson v.
Lofts at Lake Arlington Towne Condominium
Ass'n, 2018 IL App (1st) 162744, ¶ 38. In the
absence of a showing from which the court
could infer the existence of a duty, no
recovery by the plaintiff is possible as a
matter of law and summary judgment in favor
of the defendant is proper. Bruns, 2014 IL
116998, ¶ 13; Henderson, 2018 IL App (1st)

162744, ¶ 38.
¶ 12 In determining whether a duty exists, we
look to four factors: (1) foreseeability; (2)
likelihood of injury; (3) magnitude of the
burden on the defendant to guard against the
injury; and (4) consequences of placing a
burden on the defendant. LaFever v. Kemlite
Co., 185 Ill. 2d 380, 389 (1998). Where, as
here, an injury is allegedly caused by a
condition on a defendant's property, the first
factor to be considered is foreseeability.
Morrissey, 404 Ill. App. 3d at 725; see also
LaFever, 185 Ill. 2d at 389. In doing so, we

are guided by the analysis of section 343 of
the Restatement (Second) of Torts and our
supreme court's interpretation of that section.
LaFever, 185 Ill. 2d at 389; see also Sollami v.
Eaton, 201 Ill. 2d 1, 16-17 (2002). Section 343
2019)
-3-
Page 5
subjects a landowner to liability if the owner:
(1) knows or by the exercise of reasonable

care would discover the condition; (2) should
expect that the danger will not be discovered
by the invitees; and (3) fails to exercise
reasonable care to protect them against the
danger. Restatement (Second) of Torts § 343
(1965).
¶ 13 However, even if the landowner is found
to have a duty to keep his premises in a
reasonably safe condition, he or she does not
need to remove all dangers from his premises
in order to avoid liability. Ward v. K Mart
Corp., 136 Ill. 2d 132, 141-42 (1990). If the

landowner chooses to maintain a dangerous
condition on his premises, an adequate
warning to invitees suffices to render the
condition "reasonably safe." Id. at 141.
¶ 14 In this case, the trial court properly
granted summary judgment in favor of
Pottsie's because Smith presented no
evidence that could establish that Pottsie's
owed him a duty to provide additional
warnings regarding the heater or to take any
additional steps to prevent him from being
harmed by the heater. This is not a case where
an owner or possessor of land failed to warn

of a dangerous condition on the premises.
Smith concedes that Pottsie's placed a
warning above the heater and that he saw the
warning on several prior occasions.
Moreover, Smith has not challenged the
adequacy of the warning (i.e., he does not
argue that the warning was insufficiently
visible or clear to apprise him of the danger
posed by the heater). Thus, even assuming
arguendo that Pottsie's had a duty to warn its
invitees of the hazard created by the heater,
the undisputed facts establish that Pottsie's

discharged that duty by providing an
adequate warning. Id. (if the landowner
chooses to maintain a dangerous condition on
his premises, an adequate warning suffices to
render the condition "reasonably safe").
¶ 15 Smith's argument that his injury falls
within an exception to the rule shielding
landowners from liability for injuries caused
by "open and obvious" dangers is misplaced.
The
Page 6
exceptions to the "open and obvious" rule
establish a landowner's duty under certain

circumstances to warn of certain risks or
hazards (or to eliminate them) even though
such risks or hazards are known or obvious to
an invitee (see, e.g., LeFever, 185 Ill. 2d at
392-98; Henderson, 2018 IL App (1st)
162744, ¶¶ 46-55); however, they do not
establish an additional duty where, as here,
the landowner has already provided a clear
and legible warning next to the hazard at
issue, a warning which the plaintiff concedes
he saw and understood on several prior
occasions. As the trial court correctly ruled,

the undisputed evidence establishes Smith
was "fully on notice" of the burn hazard
presented by the heater but voluntarily
decided to confront that hazard despite the
known risk. Accordingly, Smith's negligence
claim fails as a matter of law.
¶ 16 However, even if we were to ignore
Smith's admission that he had repeatedly
seen and understood the warning provided by
Pottsie's, we would still affirm the trial court's
judgment. Given the other undisputed
evidence provided by the parties, Smith
cannot establish that Pottsie's owed him a

duty to provide additional warnings or
otherwise eliminate any dangers posed by the
heater. Generally, " '[a] possessor of land is
not liable to his invitees for physical harm
caused to them by any activity or condition on
the land whose danger is known or obvious to
them.' " Wade, 2015 IL App (4th) 141067, ¶ 14
(quoting Restatement (Second) of Torts §
343A (1965)); Under Section 343A of the
Restatement, which the Illinois Supreme
Court has adopted (see, e.g., Deibert v. Bauer
Brothers Construction Co., Inc., 141 Ill. 2d

430, 434 (1990)), "obvious" means that "both
2019)
-4-
the condition and the risk are apparent to and
would be recognized by a reasonable man, in
the position of the visitor, exercising ordinary
perception, intelligence, and judgment."
Restatement (Second) of Torts § 343A cmt. b
(1965). However, the rule barring liability for
known or obvious hazards is subject to certain

exceptions. An owner or possessor of land
may be liable for harm caused by hazards that
are known or obvious to an invitee if the
Page 7
owner or possessor "should anticipate the
harm despite such knowledge or
obviousness." Sollami, 201 Ill. 2d at 15
(quoting Restatement (Second) of Torts §
343A(1) (1965)). The possessor of the
premises should reasonably anticipate such
harm when he or she: (1) "has reason to
expect that the invitee's attention may be
distracted, so that he will not discover what is

obvious, or will forget what he has discovered,
or fail to protect himself against it"; or (2)
"has reason to expect that the invitee will
proceed to encounter the known or obvious
danger because to a reasonable man in his
position the advantages of doing so would
outweigh the apparent risk." LaFever, 185 Ill.
2d at 391 (quoting Restatement (Second) of
Torts § 343A cmt. f (1965)). Courts refer to
these two exceptions as the "distraction
exception" and the "deliberate encounter
exception," respectively. Sollami, 201 Ill. 2d

at 15; LaFever, 185 Ill. 2d at 391.
¶ 17 Smith concedes that the danger
presented by the wall heater was open and
obvious. However, he argues that one or both
of the recognized exceptions to the open and
obvious rule should apply here. The
undisputed evidence forecloses this
argument. The "deliberate encounter"
exception usually applies "where the plaintiff
has an economic reason for choosing to
encounter the danger, such as a job
requirement." Kleiber v. Freeport Farm &
Fleet, Inc., 406 Ill. App. 3d 249, 259-60

(2010).2 At a minimum, to avail himself of the
"deliberate encounter" exception, the plaintiff
must demonstrate some compelling reason
that forced him to confront the danger and
the lack of a viable alternative. See, e.g.,
Simmons v. American Drug Stores, Inc., 329
Ill. App. 3d 38, 40-41 (2002) (plaintiff had to
encounter the danger to leave the store area
Page 8
and to get to his car). No such reason exists in
the present case. Smith had no business or
economic reason for backing into the heater.

Rather, he stood near the heater to stay warm
while he was smoking in the beer garden, and
he leaned into the heater to scratch his
shoulder on it. He presented no evidence
suggesting that he had no other viable option
available to him at the time. In fact, the
evidence is to the contrary. Smith did not take
his coat with him when he went outside to
smoke in the beer garden. If he wanted to stay
warm outside, he could have simply worn his
coat instead of confronting a known burn
hazard. Moreover, it goes without saying that
the need to scratch an itch is not a reasonable

(much less compelling) reason to back into a
hot wall heater.
¶ 18 Nor can Smith establish that the
"distraction exception" to the known and
obvious risk rule applies here. As an initial
matter, the distraction exception applies only
where evidence exists from which a court can
infer that the plaintiff was, in fact, distracted
at the time the injury occurred. Bruns, 2014
IL 116998, ¶ 22. Moreover, the distraction at
issue may not be entirely self-created (such as
the plaintiff's mere failure to pay attention).

Id. ¶¶ 31-34. For the distraction exception to
apply, the plaintiff's attention to the known or
obvious danger must be diverted by
something outside of his own mind, and the
fact that the plaintiff would be distracted
must be reasonably foreseeable to the
defendant. See id. ¶¶ 28-32; see also Ward,
136 Ill. 2d at 153-54 (holding that the
distraction exception applied where
defendant store owner could have reasonably
2019)

-5-
anticipated that a customer would become
distracted when carrying large, bulky items
from the store and would walk into a concrete
post that was located immediately outside of
the only door leading out of the store which
was not visible from inside the store).
¶ 19 Smith has presented no evidence of any
such "distraction" in this case. He does not
claim that his attention was diverted from the
heater by any other event, circumstance, or
Page 9

condition of the premises. His argument that
he was foreseeably "distracted" at the time of
his injury rests entirely upon his claim that he
was intoxicated at the time. He contends that,
because Pottsie's served intoxicating liquors,
it was reasonably foreseeable that one of its
customers would fail to appreciate the open
and obvious hazard presented by the wall
heater or would forget about the hazard
despite having read and understood the
posted warning on prior occasions. We
disagree. As an initial matter, to whatever

extent that voluntary intoxication may be
considered a "distraction" from known and
obvious hazards, it is a distraction that is
created by the plaintiff and internal to his
own state of mind. As such, it is not the type
of external, foreseeably distracting event or
condition to which the distraction exception
applies. Bruns, 2014 IL 116998, ¶ 31 ("A
plaintiff should not be allowed to recover for
self-created distractions that a defendant
could never reasonably foresee." (internal
quotation marks omitted)); see also Estate of
Ruppel v. Hyeon Jin, Inc., 272 Ill. App. 3d

527, 530 (1995) (noting that it was "doubtful"
that a voluntarily intoxicated hotel guest who
fell down the hotel's stairs "falls within the
class of plaintiffs who are generally exercising
reasonable care for their own safety or may be
said to have been reasonably distracted or
reasonably forgetful," as required for an
exception to the open an obvious rule to
apply).
¶ 20 In addition, Smith presented no evidence
that any owner, employee, or other agent of
Pottsie's knew that he was intoxicated at the

time, much less that he was so intoxicated
that he was foreseeably likely to deliberately
back into a hot wall heater (ignoring the
posted warning) in order to scratch an itch.
Absent such evidence, Smith's injury cannot
be deemed to be reasonably foreseeable as a
matter of law, and his alleged intoxication
cannot be relevant to the duty analysis in this
case. See, e.g., Duffy v. Togher, 382 Ill. App.
3d 1, 12-13 (2008) (ruling that a plaintiff's
alleged intoxication "is not relevant to the
determination of the duty owed by
Page 10

defendant" in a premises liability case, and it
"does not affect this court's analysis of
whether the danger was open and obvious[,]
*** [which] is evaluated on an objective
standard"); Estate of Ruppel, 272 Ill. App. 3d
at 531 (absent some signs of impaired
physical mobility or other observable
incapacity to avoid an open and obvious
hazard, an intoxicated plaintiff's being
injured by such a hazard cannot be deemed
reasonably foreseeable by a defendant
business owner, even if the defendant knows

that the plaintiff is intoxicated). To hold
otherwise would be to impose an unduly
onerous burden on such defendants by
requiring them to "provide for the total care
and safety of intoxicated persons on its
premises." Id.
¶ 21 Because no exception to the open and
obvious rule applies here, Smith cannot
establish that Pottsie's owed him a duty to
provide any additional warnings or
safeguards to protect him from the known
and obvious danger presented by the wall
heater. As noted above, in determining

whether a duty exists, we look to four factors:
(1) foreseeability of injury; (2) likelihood of
injury; (3) magnitude of the burden on the
defendant to guard against the injury; and (4)
consequences of placing a burden on the
2019)
-6-
defendant. LaFever, 185 Ill. 2d at 389. The
danger presented by the heater was open and
obvious, which diminishes both the

foreseeability and the likelihood of the injury.
Bruns, 2014 IL 116998, ¶ 19 (where the
hazardous condition at issue is known or
obvious, "the foreseeability of harm and the
likelihood of injury will be slight, thus
weighing against the imposition of a duty");
see also Henderson, 2018 IL App (1st)
162744, ¶ 40 ("The open and obvious nature
of the condition itself gives caution and
therefore the risk of harm is considered
slight; people are expected to appreciate and
avoid obvious risks."), quoting Bucheleres v.

Chicago Park District, 171 Ill. 2d 435, 448
(1996). Requiring Pottsie's to take further
steps in addition to the clear and prominent
warning it provided would essentially render
Pottsie's an insurer of its invitees' safety,
which would be unduly burdensome and
contrary to
Page 11
law. By displaying a clear and legible written
warning above the heater (which Smith
concedes he saw on several prior occasions),
Pottsie's took reasonable care to protect its
invitees from the danger, and Pottsie's could

not reasonably have expected that the danger
posed by the heater would not be discovered
by its customers.
¶ 22 Smith also argues that the trial court
erred in granting summary judgment for
Pottsie's by holding that the wall heater's
manual did not create a duty, "instead of
addressing the requisite factors of whether or
not there was a duty." Smith is mistaken. As
noted above, Pottsie's provided a written
warning above the heater that Smith admitted
he saw on multiple prior occasions. Smith

also admitted that he was aware that the
heater got hot due to his prior encounters
with the heater. As shown above, under the
governing legal standards for determining a
landowner's duty in a premises liability
context, the evidence presented in this case
fails to establish that Smith had a duty to
provide any additional warnings or
safeguards to protect Smith from the hazards
presented by the wall heater. Even if Smith
improperly installed the heater in a place
where it could be touched by customers
(contrary to the manual's instructions), the

written warning that Pottsie's placed above
the heater, which was legible and clear,
removed any unreasonable or foreseeable
danger that a customer would voluntarily
touch the heater. Ward, 136 Ill. 2d at 141-42
(ruling that if the landowner chooses to
maintain a dangerous condition on his
premises, an adequate warning to invitees
suffices to render the condition "reasonably
safe"). Smith was aware that that the heater
got hot, and he has failed to establish that any
exception to the "open and obvious" rule

applies. Thus, the trial court correctly held
that the manual did not create an actionable
duty in this case.
¶ 23 Moreover, contrary to Smith's
suggestion, the fact that the trial court issued
this ruling without explaining its reasoning
(i.e., without explicitly applying the relevant
legal factors for
Page 12
determining whether a duty exists) is of no
consequence. "[T]he trial court is not
required to state all findings of fact relevant
to its decision." Kulins v. Malco, a Microdot

Co., Inc., 121 Ill. App. 3d 520, 530 (1984). In
any event, "we review the trial court's
judgment, not its rationale, and we may
affirm on any basis that the record supports."
Kubicheck v. Traina, 2013 IL App (3d)
110157, ¶ 28, n.3. For the reasons set forth
above, we uphold the trial court's judgment.
¶ 24 CONCLUSION
¶ 25 The judgment of the circuit court of
Tazewell County is affirmed.
¶ 26 Affirmed.

2019)
-7-
--------
Footnotes:
1. The owners initially alleged that
Shearer Electric ran the gas lines. However,
during his deposition, Shearer Electric's
owner testified that the company never ran
gas lines as part of its business.
2. See also LaFever, 185 Ill. 2d at 394;
Morrissey, 404 Ill. App. 3d at 725-26 (the

deliberate encounter exception "has most
often been applied in cases involving
economic compulsion, as where workers are
compelled to encounter dangerous conditions
as part of their employment obligations");
Lucasey v. Plattner, 2015 IL App (4th)
140512, ¶ 42 ("The cases in which courts have
applied the deliberate-encounter exception
almost always involve a plaintiff forced to
make a choice between either facing the
danger or neglecting his duties."); Buerkett v.
Illinois Power Co., 384 Ill. App. 3d 418, 424
(2008) ("Under the deliberate-encounter

exception, individuals will make deliberate
choices to encounter hazards when faced with
employment concerns, and those encounters
are reasonably foreseeable by possessors of
property.").
--------
Hardiman v. Aslam, 2019 IL App (1st) 173196, 125 N.E.3d
1185, 430 Ill.Dec. 167 (Ill. App., 2019)
-1-

2019 IL App (1st) 173196
125 N.E.3d 1185
430 Ill.Dec. 167
Tio HARDIMAN, Plaintiff-Appellant,
v.
Rehan ASLAM; Mike Flannery; Katie
Fraser ; Elizabeth Kane; and Fox
Television Stations, LLC, Defendants-
Appellees.
No. 1-17-3196
Appellate Court of Illinois, First
District, FIRST DIVISION.
Filed February 25, 2019

Rehearing denied March 26, 2019
Alfred S. Phelps, of Dolton, for appellant.
Mandell Menkes LLC, of Chicago (Steven P.
Mandell, Natalie A. Harris, and George V.
Desh, of counsel), for appellees.
JUSTICE PIERCE delivered the judgment of
the court, with opinion.
[125 N.E.3d 1188]
[430 Ill.Dec. 170]
¶ 1 This appeal concerns allegations by a
public figure that members of a media news
organization made defamatory statements

about him. It is therefore necessary to
understand the nature and context in which
the statements were made and the elements
and defenses applicable in defamation actions
by public figures against members of the
press. The circuit court of Cook County
entered summary judgment in favor of
defendants on plaintiff's defamation claims,
and dismissed with prejudice certain
defendants due to plaintiff's failure to timely
file his complaint against them. Plaintiff
appeals. For the reasons that follow we affirm
the circuit court's judgment.

¶ 2 I. BACKGROUND
¶ 3 A. Defamation Law
¶ 4 The essential elements of actionable
defamatory statements are well established.
To prove defamation, a plaintiff must show
that the defendant made a false statement
about the plaintiff, there was an unprivileged
publication to a third party by the defendant,
and the statement damaged the plaintiff.
Solaia Technology, LLC v. Specialty
Publishing Co. , 221 Ill. 2d 558, 579, 304
Ill.Dec. 369, 852 N.E.2d 825 (2006).

Defamatory statements are actionable either
per se or per quod . Statements are
defamatory per se if "the statements that
form the basis of the action * * * falsely
charge the plaintiff with misconduct or
incapacity in words so obviously and
naturally harmful that they are actionable
without proof of special damages." Costello v.
Capital Cities Communications, Inc. , 125 Ill.
2d 402, 414, 126 Ill.Dec. 919, 532 N.E.2d 790
(1988). Illinois recognizes five categories of
statements that are defamatory per se : (1)
words that impute a person has committed a

crime; (2) words that impute a person is
infected with a loathsome communicable
disease; (3) words that impute a person is
unable to perform or lacks integrity in
performing her or his employment duties; (4)
words that impute a person lacks ability or
otherwise prejudices that person in her or his
profession; and (5) words that impute a
person has engaged in adultery or fornication.
Green v. Rogers , 234 Ill. 2d 478, 491-92, 334
Ill.Dec. 624, 917 N.E.2d 450 (2009). No
showing of special damages—i.e. , damages of

a pecuniary nature—is required for
statements that are defamatory per se .
Costello , 125 Ill. 2d at 414, 126 Ill.Dec. 919,
532 N.E.2d 790.
¶ 5 If the offending statement does not fall
within one of the five recognized categories of
defamation per se , a plaintiff may pursue a
claim for defamation per quod . A cause of
action for defamation per quod may exist
where the defamatory character of the
statement is not apparent on its face but
Hardiman v. Aslam, 2019 IL App (1st) 173196, 125 N.E.3d

1185, 430 Ill.Dec. 167 (Ill. App., 2019)
-2-
extrinsic circumstances demonstrate an
injurious meaning, or if the statement is
defamatory on its face but it does not fall
within a category of statements that are
actionable per se . Bryson v. News America
Publications, Inc. , 174 Ill. 2d 77, 103, 220
Ill.Dec. 195, 672 N.E.2d 1207 (1996). A
plaintiff may only prevail on a claim for
defamation per quod if the plaintiff pleads
and proves special damages, which are actual

damages of a pecuniary nature.
[125 N.E.3d 1189]
[430 Ill.Dec. 171]
Hill v. Schmidt , 2012 IL App (5th) 110324, ¶
25, 360 Ill.Dec. 753, 969 N.E.2d 563. In sum,
to pursue a defamation per quod action, a
plaintiff must plead and prove extrinsic facts
to explain the defamatory meaning of the
statement and that he suffered actual
monetary damages as a result of defendants'
defamatory statement.
¶ 6 Regardless of whether a defamation claim

involves statements that are alleged to be
defamatory per se or per quod , where the
offending statement is made by a member of
the press or a media organization about a
public figure—which includes a person
running for public office ( Matchett v.
Chicago Bar Association , 125 Ill. App. 3d
1004, 1011, 81 Ill.Dec. 571, 467 N.E.2d 271
(1984) )—first amendment protections
require that the plaintiff "may not obtain
redress in a libel action unless he proves that
the allegedly defamatory statements were
made with actual malice." Costello , 125 Ill. 2d

at 418-19, 126 Ill.Dec. 919, 532 N.E.2d 790
(1988) (citing New York Times Co. v. Sullivan
, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686
(1964) ). The inquiry into whether a
statement was made with actual malice is
subjective. Wanless v. Rothballer , 115 Ill. 2d
158, 170, 104 Ill.Dec. 759, 503 N.E.2d 316
(1986) (citing Bose Corp. v. Consumers
Union of United States, Inc. , 466 U.S. 485,
511 n.30, 104 S.Ct. 1949, 80 L.Ed.2d 502
(1984) ). The plaintiff must prove by clear and
convincing evidence that defendants

"published the defamatory statements with
knowledge that the statements were false or
with reckless disregard for their truth or
falsity." Costello , 125 Ill. 2d at 419, 126
Ill.Dec. 919, 532 N.E.2d 790. A reckless
disregard for the truth may be found "where
the evidence shows that the defendant in fact
entertained serious doubts as to the truth of
the publication." Id. Furthermore, a "failure
to investigate does not itself establish actual
malice if the defendants did not seriously
doubt the truth of their assertions." Id. at 421,
126 Ill.Dec. 919, 532 N.E.2d 790. We will

"infer that a media defendant published
defamatory statements in reckless disregard
for their truth only when the defendant's
investigation has revealed either insufficient
information to support the defamatory
accusations in good faith or creates a
substantial doubt as to the truth of those
accusations." Id.
¶ 7 Lastly, for purposes of the issues of this
appeal, the substantial truth doctrine is a
defense to a defamation claim. Lemons v.
Chronicle Publishing Co. , 253 Ill. App. 3d

888, 889, 192 Ill.Dec. 634, 625 N.E.2d 789
(1993). So long as the alleged defamatory
statement is substantially true, the statement
is not actionable. Parker v. House O'Lite
Corp. , 324 Ill. App. 3d 1014, 1026, 258
Ill.Dec. 304, 756 N.E.2d 286 (2001). To be
substantially true does not mean that every
detail of the statement needs to be accurate.
Id. The defendant bears the burden of
establishing the substantial truth of the
assertions which can be accomplished by
showing that the "gist" or "sting" of the
defamatory material is true. Id.

Nelson v. James H. Knight DDS, P.C., 834 N.W.2d 64 (Iowa 2013).docx

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Nelson v. James H. Knight DDS, P.C., 834 N.W.2d 64 (Iowa 2013).docx