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LEVITT v. S.C. FOOD SERV.

April 16, 1993

JOEL LEVITT, Plaintiff,
v.
S.C. FOOD SERVICE, INC., a Canadian Corporation, S.C. FOOD SERVICE, U.S.A., INC., a Delaware Corporation, individually and d/b/a MANCHU WOK, Defendants.


ASPEN


The opinion of the court was delivered by: MARVIN E. ASPEN

MARVIN E. ASPEN, District Judge:

 Plaintiff and counter-defendant Joel Levitt ("Levitt") brought an action against defendant counter-plaintiff S.C. Food Services (Canada), Inc., and S.C. Food Services (U.S.A.), Inc., d/b/a/ Manchu Wok ("Manchu Wok") for employment discrimination in violation of Title VII. 42 U.S.C. ┬ž 2000(e) et seq.. Manchu Wok filed a counterclaim, seeking damages for defamation per se. Presently before us is Levitt's motion to dismiss Manchu Wok's counterclaim for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, we grant in part and deny in part Levitt's motion to dismiss.

 I. Factual Background1

 Manchu Wok runs a chain of fast food Chinese restaurants. In 1991, Levitt worked at Manchu Wok as a manager-trainee. After approximately one month, the restaurant fired Levitt, ostensibly for poor work performance.

 II. Discussion

 Levitt moves to dismiss Manchu Wok's counterclaim for failure to state a cause of action for defamation per se. In a two-pronged attack on Manchu Wok's allegations, Levitt contends that the single line in the resume, standing alone, cannot sustain an action for defamation per se, and that Manchu Wok failed to set forth the exact language used by Levitt in his employment interviews. We address these contentions in turn.

 A. Resume Statement

 In Illinois, a publication is defamatory per se if it is "so obviously and naturally harmful to the person to whom it refers that a showing of special damages is unnecessary." Owen v. Carr, 113 Ill. 2d 273, 497 N.E.2d 1145, 100 Ill. Dec. 783, 785 (1986). When the plaintiff is a corporation, Illinois courts have held that the "alleged defamation must assail the corporation's financial position, business methods, or accuse it of fraud and mismanagement. Harris Trust and Sav. Bank v. Phillips, 154 Ill. App. 3d 574, 506 N.E.2d 1370, 107 Ill. Dec. 315, 318 (1st Dist. 1987). Aspersions which undercut a corporation's reputation for discharging its duties with integrity and have the likely effect of harming the business, fall within the ambit of defamation per se. See American Pet Motels, Inc. v. Chicago Veterinary Medical Assoc., 106 Ill. App. 3d 626, 435 N.E.2d 1297, 62 Ill. Dec. 325, 328 (1982); Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262 (7th Cir. 1983) (if a corporation's reputation "for adhering to the moral standards of the community in which it sells its products" is attacked "in a fashion likely to harm the corporation seriously the corporation has been libeled under Illinois law").

 In order to be declared defamatory per se, however, statements must first be scrutinized under the innocent-construction rule. Owen, 497 N.E.2d at 1147, 100 Ill. Dec. at 785. Although much-maligned, the innocent-construction rule requires a court to consider a statement "in context, with the words and implications therefrom given their natural and obvious meaning." Chapski v. Copley Press, 92 Ill. 2d 344, 352, 442 N.E.2d 195, 65 Ill. Dec. 884 (1982). If the statement, viewed contextually, "may reasonably be innocently interpreted," then the court, as a matter of law, must conclude that the statement is not defamatory per se. Id. See also Owen, 497 N.E.2d at 1148, 100 Ill. Dec. at 786.

 The line in Levitt's resume, asserting that "new management led to the dismissal of non-Oriental employees," satisfies the standards for defamation per se. The simple statement declares that Manchu Wok discharged employees based on their national origin -- behavior which violates federal law, public policy, and commonly accepted morality. Such a statement, published amongst Manchu Wok's peers and accessible to potential managerial employees, impugns the restaurant's method of doing business and denigrates its integrity and lawfulness.

 Moreover, the line does not lend itself to innocent construction. No context is required to imbue the phrase with defamatory meaning. Standing alone, the statement avers that the employer discriminated against non-Oriental employees. Accordingly, we deny Levitt's motion to ...


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