An Illinois federal district court dismissed claims of defamation per se and defamation per quod brought as part of a lawsuit alleging employment discrimination, holding that the statements in question amounted to non-actionable opinion. Artunduaga v. University of Chicago Medical Center, at al, No. 12 C 8733, mem. op. (N.D. Ill., May 16, 2013). The motion before the court only sought dismissal of the defamation claims and a claim for intentional interference with employment. The court stated that the statements at issue, while not legally defamatory, could still support the plaintiff’s employment discrimination claims. The case identifies the elements necessary to support a defamation claim under Illinois state law.
The plaintiff began a residency at the University of Chicago Medical Center (UCMC) in June 2011, under the supervision of defendant Dr. David Song. She met with Dr. Song and others in November 2011 in order to discuss her “unsatisfactory performance.” Id. at 2. A memorandum summarizing the meeting was sent to multiple hospital employees. The plaintiff was later placed on probation, and she eventually learned that her one-year contract would not be renewed. Dr. Song sent her a letter on April 30, 2012 that reportedly summarized her employment status and gave her an assignment for the remainder of her residency, with copies to two hospital officials. At a grievance hearing regarding the plaintiff on May 16, 2012, Dr. Song read aloud an email from another doctor containing criticisms of the plaintiff. The plaintiff claimed that Dr. Song added his own “critical assessment[s]” of her performance. Id.
The lawsuit alleged employment discrimination claims against UCMC under 42 U.S.C. § 1981, and claimed defamation and intentional interference with employment against Dr. Song personally. The plaintiff claimed that Dr. Song’s memorandum, his letter, and his reading of the email at the grievance hearing constituted defamation. Dr. Song moved to dismiss the defamation and intentional interference claims for failure to state a claim on which relief could be granted.
The court reviewed the elements of claims for defamation per se and per quod under Illinois law. Defamation per se refers to a statement whose false and disparaging content is clearly apparent. Kolegas v. Heftel Broadcasting Corp., 607 N.E.2d 201, 206 (Ill. 1992). Defamation per quod is not so apparent, and requires extrinsic facts. Id. In Illinois, defamation per se falls into five categories. The relevant categories are statements imputing inability or lack of integrity of performance of employment duties, or lack of ability in one’s profession. Green v. Rogers, 917 N.E.2d 450, 459 (Ill. 2009). A defamation per se case still fails, however, if the statement is reasonably subject, in context, to an innocent interpretation. Id. at 463. A statement that appears defamatory is also not actionable if it is a statement of opinion rather than fact. Giant Screen Sports v. Canadian Imperial Bank of Commerce, 553 F.3d 527, 534 (7th Cir. 2009).
The Artunduaga court found that the plaintiff’s defamation per se claim failed the “innocent construction” test, and that she did not plead specific facts to support her defamation per quod claim. Artunduaga, mem. op. at 5. Furthermore, the court held that the statements in question amounted to the words of “a supervisor who is frustrated with an employee who he believes is not performing satisfactorily,” id., and are therefore non-actionable statements of opinion.
The Plaintiff informs us that she later filed a lawsuit in state court against the same defendants for breach of contract and tortious interference with contract, and prevailed on a motion to dismiss.
The slander and libel attorneys at DiTommaso♦Lubin have represented businesses and consumers in defamation lawsuits for decades, practicing throughout the greater Chicago area and Mid-West regions, including Illinois, Indiana, Iowa, and Wisconsin. We assert the rights of plaintiffs who have suffered damages due to unlawful defamation, and we defend clients against allegations of defamation by competitors or others. Please contact us today online, at (630) 333-0333, or at (833) 306-4933 to schedule a confidential consultation with a member of our team.
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