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SULLIVAN v. CONWAY

March 20, 1997

JAMES R. SULLIVAN, Plaintiff,
v.
JAMES P. CONWAY, Individually and as Agent for the INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Defendants.



The opinion of the court was delivered by: HOLDERMAN

 JAMES F. HOLDERMAN, District Judge:

 Defendants, James Conway and the International Brotherhood of Electrical Workers (IBEW), have moved for summary judgment against plaintiff, James Sullivan. Plaintiff's third amended complaint has nine counts: counts I and II for slander, counts III and IV for libel, count V for emotional distress, count VI for punitive damages, count VII for intentional interference with employment relationship, count VIII for retaliatory discharge in violation of public policy, and count IX for false light. Upon evaluation of the appropriate materials and for the reasons stated herein, defendants' motion for summary judgment is granted.

 DISCUSSION

 Plaintiff worked as a lawyer and business manager of a local IBEW union until April 1990, when defendants fired him. Counts I and II allege that Conway slandered plaintiff by publicly stating, "Jim Sullivan is a very poor lawyer." Counts III and IV allege that defendants wrote several letters and postcards that slandered plaintiff by revealing that defendants had terminated plaintiff's relationship with the IBEW. Count V alleges intentional infliction of emotional distress from the defendants' acts of slander and libel, and count VI requests punitive damages from the defendants' acts of slander of libel. Count VII alleges that defendants interfered with plaintiff's employment relationship with the local IBEW union and that defendants terminated him without notice, hearing, or just cause in violation of the IBEW constitution. Count VIII alleges that defendants violated public policy by retaliating against plaintiff for representing the local union's officers in their efforts to discover fraud by other local officers. Count IX alleges that defendants' oral and written statements placed plaintiff in a false light.

 I. Defendants have Refuted that Conway's Alleged Statement was Ever Said, and the Statement would have been Constitutionally Protected Opinion in any Event

 Summary judgment is appropriate only if there remains no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Testerman v. EDS Technical Products Corp., 98 F.3d 297, 301 (7th Cir. 1996). The non-moving party is entitled to the benefit of all reasonable inferences. Id.

 First, defendants rely on Edmund Pierce's deposition testimony to assert that Conway never said, "Jim Sullivan is a very poor lawyer." While plaintiff's response relies on Edmund Pierce's affidavit as evidence that Conway made the statement, at his deposition Pierce stated unequivocally that Conway's only comment about plaintiff was "I've heard that Jim Sullivan is not a very good lawyer." For purposes of a summary judgment motion, the court disregards an affidavit when it conflicts with the deposition. Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir. 1995). Thus, because plaintiff has not set forth specific facts showing that there is a genuine issue as to whether Conway made the alleged statement, defendants are entitled to summary judgment on counts I and II.

 In addition, the court concludes that the statement "Jim Sullivan is a very poor lawyer" is constitutionally protected opinion that cannot form the basis of a defamation claim *fn1" A statement is constitutionally protected if it cannot be reasonably interpreted as stating actual facts. Bryson v. News America Publications Inc., 174 Ill. 2d 77, 672 N.E.2d 1207, 1220, 220 Ill. Dec. 195 (1996). A statement contains actual facts if it could be proven true or false. Id.; Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S. Ct. 2695, 2706, 111 L. Ed. 2d 1 (1990). The statement "Jim Sullivan is a very poor lawyer" is incapable of being proven true or false as the statement is inherently subjective. See Patlovich v. Rudd, 949 F. Supp. 585, 593 (N.D.Ill. 1996) (private conversation was actionable because statements could be proved right or wrong); Quinn v. Jewel Food Stores, Inc., 276 Ill. App. 3d 861, 658 N.E.2d 1225, 1231, 213 Ill. Dec. 204 (1st Dist. 1995) (private evaluation that plaintiff was a "con artist" was constitutionally protected opinion as statement did not imply facts and was not capable of proof or disproof). Accordingly, the statement is protected opinion, and defendant is entitled to summary judgment on counts I and II.

 Plaintiff cites Barakat v. Matz, 271 Ill. App. 3d 662, 648 N.E.2d 1033, 208 Ill. Dec. 111 (1st Dist. 1995), to argue that defendants' statement was fact and not opinion. The Barakat defendant was a doctor who said that he had previously treated the plaintiff's patients and found nothing wrong with them. 648 N.E.2d at 1042. When this defendant went on to say that he felt plaintiff was not "any good as a doctor," Barakat held that the statement implied an underlying factual basis that could be verified by the plaintiff's patients that defendant had examined. Id. Unlike Barakat, Conway did not set out any verifiable factual basis as the foundation for his opinion, and thus this case more closely resembles Quinn where the statement "con artist" was held to be protected opinion when no additional facts were alleged. See Quinn, 658 N.E.2d at 1231.

 II. Plaintiff has not Alleged any Statements that could Support his Claims of Libel

 In counts III and IV, plaintiff alleges defamation per se in that defendants libeled his job abilities in 6 different documents: complaint exhibits A, B, D, E, F, and G. For a statement to be defamatory per se, the words must be so obviously and naturally harmful that the plaintiff need not plead and prove special damages. Swick v. Liautaud, 169 Ill. 2d 504, 662 N.E.2d 1238, 1245, 215 Ill. Dec. 98 (1996). Even when a statement could impute the lack of professional ability, if the statement can be reasonably interpreted innocently or as referring to someone other than plaintiff, the statement is not actionable per se. Pope, 95 F.3d at 613. Whether a statement can be interpreted innocently is a question of law for the court to decide. Id. In addition, substantial truth is a complete defense to any defamation action under Illinois law. Id.

 As to exhibits A, E, F, and G, these documents do not specifically refer to plaintiff, and plaintiff does not show how any third parties would have reasonably understood any statements to have referred specifically to plaintiff. See Aroonsakul v. Shannon, 279 Ill. App. 3d 345, 664 N.E.2d 1094, 1098, 216 Ill. Dec. 166 (2nd Dist. 1996) (no way to connect statements standing alone to plaintiff). Because exhibits A, E, F, and G did not make any false statements concerning plaintiff, defendants are entitled to summary judgment on the allegations concerning those documents. See Pandya v. Hoerchler, 256 Ill. App. 3d 669, 628 N.E.2d 1040, 1043, 195 Ill. Dec. 576 (1st Dist. 1993).

 In addition, even if the court did conclude that people would believe that exhibit F referred to plaintiff, plaintiff could not sustain his claim. Exhibit F requests union members to try and reach settlements themselves without the cost or added complications of attorney involvement. Under Pope, this statement was substantially true because it did not make plaintiff significantly worse off than a completely truthful statement would have. See Pope, 95 F.3d at 613. ...


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