Quinn v. Jewel Food Stores, Inc.

• Decision Date: 22 November 1995
• Docket Number: No. I-93-2991,I-93-2991
• Citation: 213 Ill.Dec. 204,276 Ill.App.3d 861,658 N.E.2d 1225
• Court: United States Appellate Court of Illinois
• Parties: , 213 Ill.Dec. 204, 11 IER Cases 380 Thomas QUINN, Plaintiff-Appellant, v. JEWEL FOOD STORES, INC., Defendant-Appellee.

Page 1225

658 N.E.2d 1225

276 Ill.App.3d 861, 213 Ill.Dec. 204,

11 IER Cases 380

Thomas QUINN, Plaintiff-Appellant, v. JEWEL FOOD STORES, INC., Defendant-Appellee.

No. I-93-2991.

Appellate Court of Illinois,

First District, Fifth Division.

Nov. 22, 1995.

[276 Ill.App.3d 862] [213 Ill.Dec. 207] David Krane, Lisle (John Valas, of counsel), for appellant.

Baker & McKenzie, Chicago (Francis D. Morrisey, Michael A. Pollard, Donald J. Hayden and B. Scott Douglass, of counsel), for appellee.

Presiding Justice COUSINS delivered the opinion of the court:

On April 30, 1992, the plaintiff, Thomas Quinn, filed a three-count complaint against his former employer, Jewel Food Stores, Inc. (Jewel), for defamation, interference with prospective advantage, and conspiracy. Defendant filed a motion to dismiss which the court granted, and plaintiff was given leave to amend his complaint. In his amended complaint, plaintiff alleged defamation per se, defamation per quod, and interference with prospective advantage. Defendant filed another motion to dismiss. The court dismissed the defamation claims with prejudice and gave plaintiff leave to amend his interference with prospective advantage claim. On appeal, plaintiff contends the trial court erred in dismissing the defamation claims because: (1) defendant's statements were actionable defamation and (2) defendant's statements were not privileged.

BACKGROUND

Plaintiff Thomas Quinn (Quinn) was an employee of Jewel from 1969 to 1985. Prior to April 20, 1978, Quinn participated in a management training program sponsored by Jewel. On April 20, 1978, Jewel's agent interviewed Quinn regarding a management position at Jewel. The object of this interview was to evaluate Quinn's suitability for a position within the Jewel management company. The agent recorded his impressions of plaintiff in a memorandum to Jewel management. The memorandum included an evaluation form which rated Quinn in the categories of "appearance," "personality," "intelligence," "maturity," "stability," "leadership," "willingness to work," "drive-will to succeed," "attitude toward retailing," and "overall rating of applicant." The form's rating system ranged from "outstanding" to "marginal." Quinn received an overall rating of "good." In the evaluation form's comment section, the agent indicated under "strong points" that plaintiff was "very aggressive, to the point of being cocky ... could be a problem!" Under "weak points," the agent stated: "A con artist!!

                [213 Ill.Dec. 208] !!  Watch out for the bullshit!"   Under the recommendation section, the agent noted that overall "[Quinn] could be dynamite IF he performs as he acts and talks ... HIRE, but let him prove his own program."   Although Jewel denied Quinn a management position, Quinn continued to work for Jewel until 1985
                

After leaving Jewel, Quinn sought to secure a franchise with Southland Corporation (7-Eleven) and White Hen Pantry convenience stores. On or about September of 1991, Jewel released Quinn's personnel file to Southland Corporation and White Hen Pantry. Quinn authorized the release of this file; however, he was not aware of the comments contained in the evaluation. Southland Corporation and White Hen Pantry denied Quinn franchises with their convenience stores.

On April 30, 1992, Quinn filed a three-count complaint against Jewel which alleged that Jewel had defamed, tortiously interfered with his ability to obtain a franchise, and conspired against plaintiff in preventing him from obtaining a franchise. Jewel filed a motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)), arguing that the evaluation comments were neither defamatory per se nor defamatory per quod, and that the publication of the interview evaluation form at Quinn's request was protected by a qualified privilege. The court granted Jewel's motion to dismiss but allowed Quinn leave to file an amended complaint.

On February 16, 1993, Quinn filed an amended complaint which alleged defamation per se, defamation per quod, and tortious interference with a prospective economic advantage. Jewel filed another motion to dismiss based on the same argument as the first motion to dismiss and additionally argued that the agent's evaluative comments were protected opinion. The court again dismissed Quinn's defamation claims, finding that the evaluation was neither defamatory per se nor defamation per quod, the statements were privileged, and the speech used in the defamation counts did not bar the plaintiff from obtaining the franchise. Plaintiff appealed.

We affirm.

OPINION

I

In ruling on a section 2-615 motion to dismiss, the court must accept as true all well-pleaded facts in the complaint and all reasonable inferences which can be drawn therefrom. (Fellhauer v. City of Geneva (1991), 142 Ill.2d 495, 499, 154 Ill.Dec. 649, 568 N.E.2d 870.) The question presented by a motion to dismiss a complaint for failure to state a cause of action is whether sufficient facts are contained in the pleadings which, if established, could entitle the plaintiff to relief. (Heerey v. Berke (1989), 188 Ill.App.3d 527, 530, 136 Ill.Dec. 262, 544 N.E.2d 1037.) In making this determination, the court is to interpret the allegations of the complaint in the light most favorable to the plaintiff. Kolegas v. Heftel Broadcasting Corp. (1992), 154 Ill.2d 1, 9, 180 Ill.Dec. 307, 607 N.E.2d 201.

With these general principles in mind, we must first decide whether defendant's statements were actionable defamation against plaintiff. A statement is defamatory if it tends to cause such harm to the reputation of another that it lowers that person in the eyes of the community or deters third persons from associating with her. (Kolegas, 154 Ill.2d at 10, 180 Ill.Dec. 307, 607 N.E.2d 201.) While words may be considered defamatory, they are not actionable if they are constitutionally protected expressions of opinion. (Mittelman v. Witous (1989), 135 Ill.2d 220, 229, 142 Ill.Dec. 232, 552 N.E.2d 973.) Because the distinction between opinion and fact is a matter of law (Ollman v. Evans (D.C.Cir.1984), 750 F.2d 970, 978), we are faced with the task of "accommodating the First Amendment's protection of free expression of ideas with the common law's protection of an individual's interest in reputation." Ollman v. Evans, 750 F.2d at 974.

The protection of opinion from defamation actions finds its roots in Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 339 94 S.Ct. 2997, 3006-07, 41 L.Ed.2d 789, 805. In Gertz, the Court stated in dicta:

"Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact." (418 U.S. at 339-40, 94 S.Ct. at 3007, 41 L.Ed.2d at 805.)

However, Gertz gave little guidance on how courts should discern the distinction between fact and opinion. Therefore, State and Federal courts have wrestled with determining methods to differentiate constitutionally protected opinions from statements of fact. For example, in Ollman, the court developed its own test to determine whether under the totality of the circumstances, the average reader would view the statement as fact or, conversely, opinion. The court used four factors: (1) whether the statement has a precise core of meaning for which a consensus of understanding exists or, conversely, whether the statement is indefinite and ambiguous; (2) whether the statement is verifiable, i.e., capable of being objectively characterized as true or false; (3) whether the literary context of the statement would influence the average reader's readiness to infer that a particular statement has factual content; and (4) whether the broader social context or setting in which the statement appears signals a usage as either fact or opinion. The court stated that while these factors are necessarily imperfect, they can assist in determining what constitutes an assertion of fact and what is opinion. Ollman, 750 F.2d at 979.

Also, in Mittelman, the Illinois Supreme Court relied on the distinctions made between fact and opinion in the Restatement (Second) of Torts, § 558 (1977). The Restatement distinguishes between "pure opinion" and "mixed opinion." "Pure opinion" is an expression of opinion by which the maker of a comment states the facts on which he bases his opinion of the plaintiff and then expresses a comment as to the plaintiff's conduct, qualifications or character. If both parties to the communication know the facts or assume their existence, the maker of the comment need not himself express the alleged facts. (Restatement (Second) of Torts § 566, Comment b, at 171 (1977).) However, "mixed opinion" is an opinion in form or context that is apparently based upon facts which have not been stated by the defendant or assumed to exist by the parties to the communication. (Restatement (Second) of Torts, § 566, Comment b, at 172 (1977).) The mixed expression of opinion may give rise to the inference that there are undisclosed facts that justify the opinion expressed. If so, it is actionable. (Mittelman, 135 Ill.2d at 242, 142 Ill.Dec. 232, 552 N.E.2d 973.) The court recognized the factors in Ollman as "workable criteria for determining the existence of [an] undisclosed fact in a statement alleged to be defamatory"; however, the court adopted the Ollman test to supplement, rather than replace, the analytical framework of the Restatement. Mittelman, 135 Ill.2d at 243-44, 142 Ill.Dec. 232, 552 N.E.2d 973.

In this case, plaintiff asserts that defendant's statements were mixed opinion and gave rise to the inference that there are undisclosed facts that justify the opinion expressed. Specifically, plaintiff argues that the memorandum was designed to assign values to certain characteristics and abilities of the...