Published on:

Employee Loses Defamation Claim Over Poor Performance Review

Nobody likes getting a bad job performance review, but can an employee who receives one and later loses her job bring a winnable claim for defamation? Probably not, according to a recent decision issued by the Illinois First District Appellate Court.

Sandra G. was employed by the American Association of Nurse Anesthetists (AANA) in an executive position. Upon hire, Sandra signed an offer letter stating her employment was “at will” and could be terminated at any time. About a year and a half later, she was informed the budgetary funding for her position had been eliminated, ending her employment with AANA.

In 2010, she brought a complaint against AANA and one of their executives alleging defamation per se, invasion of privacy, and intentional interference with business expectancy, as a result of a negative job performance evaluation that preceded her termination. Defamation per se, or “on its face,” arises from statements falsely asserting that someone is involved in unlawful activity or is deficient in her professional abilities. In all defamation cases, a plaintiff must prove the statements were uttered to a third party.

Several months before Sandra lost her job, her supervisor, Brent S., had conducted her performance review in the lounge of the San Diego Marriott Hotel, in the presence of at least one other AANA employee. Sandra’s complaint accused Brent of “publishing” defamatory statements about her during this review in a loud voice, including the charge that she had not initiated any new projects in her position, that she failed to complete an important task, and that her written communications were of poor quality. She alleged that publication of these statements was not privileged, was made in bad faith and with actual malice, and with the sole purpose of causing her harm. She argued that because Brent was acting as an agent of AANA, that AANA was vicariously liable for his alleged defamatory conduct. Sandra claimed she had a reasonable expectation of entering into a one-year employment contract with AANA, which she based on the fact the human resources director was in the process of preparing a contract for her, which was never signed by any party. At trial, however, Sandra testified the alleged defamatory statements had not interfered with her efforts to find a new job.

The trial court granted summary judgment for the defendants on all counts. On appeal, the First District agreed with the lower court that the defamatory character of the statements at issue was not so obvious that injury to Sandra’s reputation could be presumed, an element of defamation per se. “[The statements] do not impute her ability to perform her duties,” Judge Delort wrote, “[but] refer to her failure to complete specific tasks.” Delort concluded that all Brent’s statements could reasonably be given an “innocent construction” and did not support an action for defamation per se. Further, Sandra had not presented evidence the statements were published to a third party, because the other AANA employee present was another of Sandra’s supervisors who was privileged to participate in the review, and Sandra had not produced any other person who overheard the discussion.

The court also rejected Sandra’s false light invasion of privacy claim, stating she had not pled special damages with the requisite particularity, and also could not have been placed in a false light “before the public” because she could produce no other witnesses to Brent’s statements. Finally, the court rejected her interference with business expectancy claim because she signed at at-will offer letter, could not produce a valid contract, and testified that no one at AANA had promised her a set term of employment.

Our Chicago libel and slander lawyers concentrate in this area of the law. We have defended or prosecuted a number of defamation and libel cases including cases representing a high profile athlete against a well known radio shock jock, a consumer sued by a large car dealer in federal court for negative internet reviews and videos, one of Loyola University’s largest contributors when the head basketball coach sued him for libel after he was fired, a lawyer who was falsely accused of committing fraud with the false allegation published to the Dean of the University of Illinois School of Law where the lawyer attended law school and the President of the University of Illinois.

Our Chicago defamation attorneys defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. Our Chicago Cybersquatting attorneys also represent and prosecute claims on behalf of businesses throughout the Chicago area including in Rockford and Orland Park who have been unfairly and falsely criticized by consumers and competitors in defamatory publications in the online and off line media. We have successfully represented businesses who have been the victim of competitors setting up false rating sites and pretend consumer rating sites that are simply forums to falsely bash or business clients. We have also represented and defended consumers First Amendment and free speech rights to criticize businesses who are guilty of consumer fraud and false advertising.

Super Lawyers named Chicago and Oak Brook business trial attorneys Peter Lubin and Vincent DiTommaso Super Lawyers in the Categories of Class Action, Business Litigation and Consumer Rights Litigation. DiTommaso-Lubin’s Oak Brook and Chicago business trial lawyers have over a quarter of century of experience in litigating complex class action, consumer rights and business and commercial litigation disputes. We handle emergency business law suits involving injunctions, and TROS, defamation, libel and covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist businesses and business owners who are victims of fraud or defamatory attacks on their business and reputations.

DiTommaso-Lubin’s DuPage County defamation and slander lawyers near Naperville and Wheaton have more than two and half decades of experience helping business clients unravel the complexities of Illinois and out-of-state business laws. Our Chicago business, commercial, class-action and consumer litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. From offices in Oak Brook, near Mt. Prospect and Arlington Hts., we serve clients throughout Illinois and the Midwest.

If you are the victim of a defamatory attack on your business or a consumer who has been sued to stop you from posting criticism of a business on line at Yelp or anywhere else, contact one of our Oak Brook and Chicago defamation lawyers for a free consultation at (877) 990-4990 or online by filling out our contact us form.