Harrison v. Addington , 955 N.E.2d 700 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Harrison v. Addington, 2011 IL App (3d) 100810Appellate Court ANDRE HARRISON, Plaintiff-Appellant, v. MICHAEL ADDINGTON,
Caption JAMES OLSON, ROY DeVAULT, SHERRI MARTIN, JEFF
CHISHOLM, STEVE BROCKWAY, MARK DIGNEY and METROE
HORNBUCKLE, Defendants-Appellees, (Shawn Maddox, Defendant).
District & No. Third District
Docket No. 3-10-0810
Filed September 6, 2011
Held In an action against several of plaintiff’s supervisors and fellow
(Note: This syllabus employees alleging defamation and intentional interference with
constitutes no part of plaintiff’s employment based on statements that plaintiff sexually
the opinion of the court assaulted a subordinate and that there was a warrant for his arrest, the
but has been prepared entry of summary judgment for defendants was affirmed where the record
by the Reporter of established that plaintiff did have relationships with subordinates and
Decisions for the others, and those relationships created a risk for workplace violence and
convenience of the a risk of financial liability for the employer.
reader.)
Decision Under Appeal from the Circuit Court of Rock Island County, No. 09-L-136; the
Review Hon. James J. Mesich, Judge, presiding.
Judgment Affirmed.
Counsel on Stephen T. Fieweger (argued), of Katz, Huntoon & Fieweger, P.C., of
Appeal Moline, and Cameron Davidson, of Lane & Waterman, LLC, of
Davenport, Iowa, for appellant.
Nina G. Stillman (aruged), and Christopher J. Boran, both of Morgan,
Lewis, & Bockius, LLP, of Chicago, for appellees.
Panel JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
Presiding Justice Carter and Justice O’Brien concurred in the judgment
and opinion.
OPINION
¶1 Appellant-plaintiff, Andre Harrison, appeals the trial court’s grant of summary judgment
on behalf of appellees-defendants, Michael Addington, James Olson, Roy DeVault, Sherri
Martin, Jeff Chisholm, Steven Brockway, Mark Digney and Metroe Hornbuckle.
¶2 Counts II and IV of the third amended complaint allege that Olson and DeVault defamed
appellant by repeating the false statements that appellant committed a sexual assault and that
there was a warrant for Harrison’s arrest.
¶3 Counts VI through XIII of the third amended complaint allege that Addison, Olson,
DeVault, Martin, Chisholm, Brockway, Digney and Hornbuckle each intentionally interfered
with appellant’s employment by improperly using a company investigation as an opportunity
to terminate appellant’s employment with Deere & Co.
¶4 Counts I, III, and V are not at issue in this appeal. Counts I and V are claims of
defamation and intentional interference against Shawn Maddox and are not involved in this
appeal. Count III is a claim of defamation against Michael Addington; appellant conceded
the motion for summary judgment.
¶5 For the reasons that follow, we hold that the trial court correctly granted summary
judgment in favor of each defendant, and we affirm the judgment.
¶6 FACTS
¶7 I. The Parties on Appeal
¶8 Appellant began working for Deere in 1999 as an industrial relations representative. Prior
to his termination in 2009, Deere promoted him five times and increased his salary on more
than 10 occasions.
¶9 When terminated, appellant was the operations manager at John Deere Seeding Group
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(Seeding). At that time, each of the defendants was employed by Deere. Their respective
titles, and work relationship to appellant, if any, were:
- Roy DeVault, global director, Seeding (appellant’s second-level supervisor);
- James Olson, factory manager, Seeding (appellant’s immediate supervisor);
- Jeff Chisholm, global director, Deere worldwide security;
- Steven Brockway, regional director, Deere worldwide security;
- Mark Digney, investigator, Deere worldwide security;
- Metroe Hornbuckle, vice president, Deere human resources;
- Michael Addington, director, Deere human resources; and
- Sherri Martin, director, Deere human resources.
¶ 10 Other Relevant Individuals
- Shawn Maddox, Seeding employee, only remaining defendant after the trial court
granted summary judgment to appellees, father of Alissa Maddox;
- Alissa Maddox, Seeding mail room employee, daughter of Shawn Maddox;
- Denny Black, Deere industrial relations administrator;
- Heather Thielbert, Seeding contingent employee, appellant’s subordinate (employed by
Volt); and
- Angie Soliz, Deere employee, neither a supervisor nor subordinate of appellant; married
to an employee appellant managed.
¶ 11 II. Allegations
¶ 12 On Sunday, August 30, 2009, Shawn Maddox called Denny Black and asked him what
would happen if he assaulted someone at work. Black informed him of the consequences.
Recognizing an underlying issue, Black asked Shawn why he had asked. Shawn informed
Black that his daughter, Alissa Maddox, told him that appellant raped her the previous night.
Shawn said that Alissa obtained medical help, filed a report with law enforcement, and either
that there was or might be a warrant for appellant’s arrest. Shawn also told Black that Alissa
claimed appellant was forcing Heather Thielbert to continue a sexual relationship with
appellant by threatening her position at Seeding. Shawn explained that Thielbert was at
appellant’s home at the time of the attack. Black recommended that Shawn contact Seeding
global director, DeVault.
¶ 13 Later that day, Shawn Maddox spoke with DeVault, who was out of the country. After
speaking with Shawn, DeVault called Seeding factory manager James Olson, appellant’s
direct supervisor. DeVault told Olson about his conversation with Shawn Maddox, including
the allegations made against appellant. Since DeVault was scheduled to be out of the country
for the week, Olson agreed to contact Black for more information so that he could formulate
a recommendation on how to proceed.
¶ 14 Olson and DeVault agreed that appellant should work from home pending further
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investigation. They felt that as a management employee, appellant could easily work offsite.
They also determined that Deere worldwide security should be notified, in accordance with
company policies that required the reporting of potential incidents of workplace harassment
or violence.
¶ 15 On Monday morning, Olson met with appellant at Seeding. He told him that Shawn
Maddox had reported to the company that appellant sexually assaulted his daughter and that
there was, or might be, an arrest warrant for appellant. Olson told appellant to work from
home and that he should take care of any supposed warrant that might exist.
¶ 16 After meeting with appellant, Olson contacted Deere worldwide regional security
manager Stephen Brockway; he informed Brockway of the allegations made against
appellant. Brockway then assigned worldwide security investigator Mark Digney to conduct
an investigation at Seeding.
¶ 17 Later in the morning, Brockway and Digney met with Jeff Chisholm, the global director
of worldwide security. Chisholm instructed Digney to focus the investigation on the Seeding
work environment due to the concern for potential workplace harassment and violence.
Chisholm told Digney to avoid the specific facts of the alleged assault to avoid interfering
with any criminal investigation conducted by law enforcement.
¶ 18 Still on Monday, sometime after meeting with Brockway and Digney, Chisholm met with
Sherri Martin and Michael Addington, both human resources directors. He informed them
of the allegations made against appellant and that Digney was leading the investigation.
¶ 19 At some point on Monday, appellant’s security badge was deactivated, denying him
access to company facilities.
¶ 20 On Monday, appellant sent Olson an e-mail that stated neither the Moline nor Davenport
police department had any record of a complaint against appellant, nor was there a warrant
for his arrest. Olson passed this information to Digney. It was later learned that this statement
was only half true. Alissa had filed a sexual assault complaint against appellant with the
Davenport police.
¶ 21 III. Digney’s Investigation
¶ 22 Digney investigated the allegations from Monday, August 31, to Wednesday, September
2. On Monday, he first met with Olson and Black to learn about the allegations made against
the appellant. Later on Monday, after obtaining approval, Digney began reviewing
appellant’s work e-mail account. He found two sexually explicit text messages appellant
received on his company-issued Blackberry, which he forwarded using his work e-mail
account. Initially, he did not know who sent the text messages because the messages only
included a phone number.
¶ 23 Digney conducted the following relevant interviews:
- Shawn Maddox, approximately 11 a.m. on September 1;
- Alissa Maddox, approximately 1:30 p.m. on September 1;
- Heather Thielbert, approximately 3:15 p.m. on September 1;
- Angie Soliz, approximately 9:15 a.m. on September 2;
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- Appellant, approximately 11:30 a.m. on September 2.
¶ 24 Thielbert admitted that she and appellant were involved in a sexual relationship that
began several months earlier. She denied that appellant threatened her position with Deere.
She recognized the phone number of the sexually explicit text messages received by
appellant as that of Angie Soliz.
¶ 25 Soliz admitted that she had been involved in a “personal” relationship with appellant. She
told Digney that she sent the two inappropriate text messages to appellant. The text messages
described a sex act she would perform on him. She said that she did not know the phone
number she sent the messages to was registered to a Deere phone. These text messages from
Soliz were those that Digney found from appellant’s Blackberry. Appellant admitted that he
was in a relationship with Thielbert. He explained that he forwarded the text messages “to
retain[ ] evidence of a consensual relationship.” At that time, appellant knew that Soliz was
married to a factory worker whom he managed at Seeding.
¶ 26 Appellant also admitted that he had been involved in a sexual relationship with the wife
of another Seeding employee. He defined the relationship as “sporadic.” Digney understood
this to mean the relationship was ongoing, but appellant has since claimed the relationship
ended years ago, prior to the woman’s marriage to a Deere employee.
¶ 27 Following his interview, appellant sent an e-mail to Addington, who attended the
interview. It stated, “I understand the seriousness of the situation. I wanted to assure you I
have taken all the steps to end those relationships to better ensure that no future issues arise.
*** It was far below the professional standard I expect for myself.”
¶ 28 IV. Digney Reports
¶ 29 On September 2, Digney summarized his findings to Chisholm, Martin, and Addington.
He later completed a 21-page formal report. Digney did not make any recommendations
regarding disciplinary action; his sole responsibility was to investigate and report.
¶ 30 V. Decision to Terminate Appellant
¶ 31 On September 2, a conference call occurred among human resources directors Martin and
Addington; human resources vice president Hornbuckle; vice president of Deere agriculture
and turf Eric Hansotia; and president of Deere agriculture and turf David Everitt.
¶ 32 During the conference call, Addington summarized the results of Digney’s investigation.
Martin explained that Deere recently terminated managers who had engaged in inappropriate
relationships with subordinates. She recommended terminating appellant to remain consistent
with the current practice.
¶ 33 Everitt asked Martin to give details of managers who were fired for actions similar to
those of appellant. Martin then explained how a manager was recently terminated after a
single consensual, sexual encounter with a Deere administrative assistant. Martin went on
to explain that during the past several years, Deere started terminating managers who had
engaged in such conduct because of the risk of sexual harassment or discrimination claims.
¶ 34 Everitt made the final decision to terminate appellant’s employment. On September 3,
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Addington and Olson met with appellant and informed him he was terminated due to the
information discovered in the investigation.
¶ 35 Any additional facts necessary in the analysis of appellant’s arguments will be included
below.
¶ 36 ANALYSIS
¶ 37 Appellant argues that the trial court improperly granted summary judgment in favor of
the appellees. The court granted summary judgment on claims of defamation and intentional
interference with continued employment. We review a grant of summary judgment de novo.
Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 280 (2007). “Section 2-1005 of the Code of
Civil Procedure provides for summary judgment when the pleadings, depositions, and
admissions on file, together with any affidavits, show that there is no genuine issue as to any
material fact ***.” Id.; 735 ILCS 5/2-1005 (West 2008). We review the record in the light
most favorable to the nonmoving party. Forsythe, 224 Ill. 2d at 280. “We may affirm on any
basis appearing in the record, whether or not the trial court relied on that basis or its
reasoning was correct.” Atanus v. American Airlines, Inc., 403 Ill. App. 3d 549, 554 (2010).
¶ 38 I. Defamation
¶ 39 Appellant argues that the trial court improperly granted summary judgment to DeVault
and Olson with respect to his claims of defamation per se. “To prove defamation, a plaintiff
must show that the defendant made a false statement about him, that there was an
unprivileged publication to a third party with fault by the defendant, and that the publication
damaged plaintiff.” Vickers v. Abbott Laboratories, 308 Ill. App. 3d 393, 400 (1999). “Truth
is an absolute defense to defamation; true statements cannot support a claim of defamation.”
Hnilica v. Rizza Chevrolet, Inc., 384 Ill. App. 3d 94, 97 (2008). Damages are presumed in
a claim of per se defamation. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 87
(1996). “In Illinois, there are five categories of statements that are considered defamatory per
se: (1) words that impute a person has committed a crime; (2) words that impute a person is
infected with a loathsome communicable disease; (3) words that impute a person is unable
to perform or lacks integrity in performing her or his employment duties; (4) words that
impute a person lacks ability or otherwise prejudices that person in her or his profession; and
(5) words that impute a person has engaged in adultery or fornication.” Solaia Technology,
LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 579-80 (2006). “It is well settled that, even
if an alleged statement falls into one of the categories of words that are defamatory per se,
it will not be actionable per se if it is reasonably capable of an innocent construction.” Green
v. Rogers, 234 Ill. 2d 478, 499 (2009). Appellant attempts to establish DeVault made a
defamatory statement with the following from DeVault’s deposition:
“Q. What did you say to Jim Olson?
A. Essentially, conveyed the message that what Shawn had told me, that we had–the
allegations that Andre had assaulted his daughter and that he thought there was a warrant
out for Andre’s arrest, and that we would need to contact Andre and work through the
issue, and that’s paraphrasing, for sure, because I don’t remember the exact conversation.
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***
Q. Did you tell Jim Olson that Mr. Maddox had said that the alleged assault was
reported to local law enforcement and that Harrison had a warrant for his arrest?
***
A. Yes, I did.”
He also points to this testimony from the deposition of Olson:
“Q. What did Mr. DeVault tell you?
A. He said that Shawn told him that there was some incident, assault, of his daughter
on Friday night or Saturday morning before.
Q. What else did he say?
A. That it had been reported to the police.
Q. Did DeVault say that he reported it to the police, or did DeVault say that Maddox
had reported it, said it was reported to the police?
A. That Maddox said that it was reported to the police.
Q. Did he say that there was an arrest warrant out for Andre?
A. That came up. I don’t know if he said there is a warrant or there may be a warrant.
I don’t know. This is what Shawn Maddox said.
Q. So Maddox said either there may be a warrant or there was a warrant?
A. He said one of those.”
¶ 40 Olson and DeVault argue that these statements cannot support a claim for defamation
because they are true. Appellant has never claimed that Shawn Maddox did not make the
allegations concerning appellant. The evidence does not establish that DeVault made a
defamatory statement. DeVault merely made the truthful statement regarding what Shawn
Maddox had alleged. Appellant failed to establish DeVault made a defamatory statement.
¶ 41 The evidence presented with regard to the alleged defamatory statements made by Olson
include the deposition of Martin. Counsel questioned her concerning a note she wrote that
said, “He turned himself in?”:
“Q. What’s it mean, ‘He turned himself in.’?
A. Well, there is a question mark there.
Q. I know, but who told you that he turned himself in?
A. I don’t recall for sure, but I believe it was–
***
Q. With whom were you communicating to get this information?
A. I talked to a number of people that day. This particular one, I believe that perhaps
Jim Olson may have said something like that.
Q. Said that Andre turned himself into the police?
A. Something like that.
Q. Okay. That was perhaps mere paraphrasing?
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A. Yes.”
Olson’s deposition testimony indicates that he informed Brockway “that an employee had
made this accusation.”
¶ 42 In Digney’s deposition, he was asked about various statements in his report. Specifically,
referring to the report:
“Q. Look at page 4 and the top of page five. It says, ‘It should be noted that Maddox
informed DeVault that the alleged assault was reported to local law enforcement and that
Harrison had a warrant for his arrest.’
A. Mr. Olson must have told me that, then.”
¶ 43 Appellant seems to argue that the phrase “and that Harrison had a warrant for his arrest”
is somehow not related to the rest of the sentence, which makes clear that these are things
that Maddox told DeVault. This evidence merely shows that Olson passed along the
allegations that Maddox made. Appellant has failed to establish that Olson made a
defamatory statement. The trial court’s grant of summary judgment on behalf of Olson and
DeVault is affirmed.
¶ 44 II. Intentional Interference
¶ 45 In separate counts, appellant alleges that each of the appellees interfered with his ongoing
employment at Seeding. The appellees raise two arguments supporting the trial court’s grant
of summary judgment on the intentional interference claims. First, they argue that appellant’s
intentional interference claims are preempted by the Illinois Human Rights Act (the Human
Rights Act) (775 ILCS 5/1-101 et seq. (West 2008)). Second, they argue that even if the
action is not preempted by the Human Rights Act, their actions were privileged.
¶ 46 A. The Human Rights Act Preemption
¶ 47 Defendants rely on Geise v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507 (1994), for the
proposition that appellant’s intentional interference claims are preempted by the Human
Rights Act. They argue that appellant asserts that all of the defendants decided to interfere
with his continued employment in retaliation for his previous claims of discrimination, which
is covered by the Human Rights Act.
¶ 48 The Illinois Supreme Court recently clarified Geise in Blount v. Stroud, 232 Ill. 2d 302(2009). The Human Rights Act preempts tort claims only when they are “inextricably linked”
to a civil rights violation. Blount, 232 Ill. 2d at 313. No preemption exists if there is an
independent basis for the action apart from the Human Rights Act. Id.¶ 49 Since appellant’s allegations of intentional interference are cognizable without reference
to the legal duties created by the Human Rights Act, they are not preempted by the Human
Rights Act.
¶ 50 B. Intentional Interference
¶ 51 We note that appellant appears to be arguing that all of the defendants conspired to
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interfere with his employment; he claims that the actions of all the defendants should be
looked at together to determine whether they tortiously interfered with his continued
employment. Yet, he did not allege a conspiracy in his complaint. He also did not name
Deere as a defendant, which would have been liable for all of the actions taken by its
employees. Our function is to ensure that the trial court correctly determined that no issues
of material fact remain. Forsythe, 224 Ill. 2d at 280. We will address each count individually
to determine whether questions of fact remain with regard to that count.
¶ 52 In order to prevail on a claim of intentional interference with prospective economic
advantage, appellant must show: (1) that he had a reasonable expectation of continued
employment; (2) that the defendants knew of the expectancy; (3) that their intentional and
unjustified interference caused the termination of the employment; and (4) damages.
Anderson v. Vanden Dorpel, 172 Ill. 2d 399, 406-07 (1996); Fellhauer v. City of Geneva,
142 Ill. 2d 495, 511 (1991); Vickers v. Abbott Laboratories, 308 Ill. App. 3d 393, 411-12
(1999). Generally, a corporate officer cannot interfere with the continued employment of an
employee of the corporation because the officer acts on behalf of the corporation. Vickers v.
Abbott Laboratories, 308 Ill. App. 3d 393, 411 (1999). “This qualified privilege does not
apply where officers act solely for their own gain or solely for the purpose of harming
plaintiff since such conduct is not undertaken to further the corporation’s interest. [Citation.]
To be tortious, a corporate officer’s action must be done without justification or
maliciously.” (Emphasis omitted.) Mittelman v. Witous, 135 Ill. 2d 220, 249 (1989),
abrogated by Kuwik v. Starmark Star Marketing & Administration, Inc., 156 Ill. 2d 16(1993).
¶ 53 Counts VII and VIII–Interference by Olson and DeVault
¶ 54 Appellant made identical claims against Olson and DeVault. He claims they illegally
scrutinized his e-mail and text messages, banned appellant from work, and falsely claimed
that he created a financial risk as well as a risk of workplace violence.
¶ 55 None of this is supported by the record. Shawn Maddox informed DeVault of the
accusations concerning Alissa Maddox and Thielbert. DeVault, who was out of the country,
contacted Olson. After talking to Black, Olson recommended that the employees be separated
until an investigation could be completed. Olson and DeVault agreed that as a management
employee appellant would be able to work from home. They agreed to have appellant work
from home and to inform security, so that they could conduct an investigation. DeVault and
Olson had nothing further to do with the investigation or termination of appellant.
¶ 56 Appellant argues that Olson had a duty to investigate on his own, before informing Deere
worldwide security of the allegations. Appellant presents no case law requiring that every
person who learns of potential problems in the workplace must conduct his or her own
investigation before informing those designated by the company to deal with such
allegations. Olson and DeVault learned about the allegations of misconduct by appellant over
the weekend. After taking initial steps to separate the employees involved in the accusation,
they informed the people in the company responsible for investigating the allegations.
¶ 57 The argument that Olson and DeVault falsely claimed that appellant created a financial
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risk as well as a risk of violence is baseless. Shawn Maddox had already threatened to attack
appellant based on appellant’s alleged conduct with Maddox’s daughter, all of which is
undisputed. Appellant also admitted to sleeping with a subordinate and having, at least,
inappropriate relationships with other subordinates’ wives. And, given the content of the text
messages and appellants admissions, DeVault and Olson could reasonably have believed
those relationships to be sexual. Certainly, this creates a financial risk to Deere.
¶ 58 There is no evidence that Olson and DeVault acted solely for their own gain or to harm
appellant. Their prompt response to the allegations is exactly the type of response warranted
by such allegations. The trial court’s decision to grant summary judgment with respect to
counts VII and VIII is affirmed.
¶ 59 Count VI–Addington
¶ 60 Appellant alleged in his complaint that Addington was biased against him based on a
charge of race discrimination appellant made in 2003, which Addington was unable to
resolve. Appellant further alleged that Addington illegally scrutinized his e-mail and text
messages, falsely claimed that appellant violated Deere’s electronic equipment use policy,
created a financial risk for the company, and created a risk of workplace violence.
¶ 61 Appellant offers no evidence, other than his own speculation, to substantiate that
Addington sought retribution. “However, ‘[m]ere speculation, conjecture, or guess is
insufficient to withstand summary judgment.’ [Citation.]” Atanus, 403 Ill. App. 3d at 553.
The mere fact that appellant made a claim of discrimination six years earlier does not raise
a question of fact concerning Addington’s actions. See Clark County School District v.
Breeden, 532 U.S. 268, 273-74 (2001) (per curiam) (holding that adverse action occurring
nearly two years after discrimination complaint showed “no causality at all”); Hughes v.
Derwinski, 967 F.2d 1168, 1174-75 (7th Cir. 1992) (four-month gap between complaint and
adverse action could not support a reasonable inference of retaliation).
¶ 62 In appellant’s deposition, he stated that he was not aware of anything that indicated
Addington had directed Digney to perform an improper investigation. In fact, there is no
evidence that Addington had any control over how Digney performed his investigation.
Ultimately, Addington made an oral report of Digney’s investigation to Everitt, who made
the decision to terminate appellant.
¶ 63 Addington informed Everitt of the results of Digney’s investigation. Addington’s
deposition testimony is, “I told him that we substantiated an inappropriate relationship
between Andre and a Volt employee; that in the course of that we identified two other–I used
the words inappropriate relationships with Deere or Deere-related individuals, and that he
had–that he had utilized company assets to create, nurture and continue those relationships.”
Appellant asserts that Addington was out to get him because he told Everitt that appellant
violated the electronic usage policy. Yet, when asked in his deposition if he was aware of any
violation of the electronic usage policy with respect to Bald, Addington replied, “No.” This
testimony does not preclude the fact that he felt the electronic usage policy had been violated
by appellant with respect to Thielbert or Soliz.
¶ 64 Addington summarized the results of Digney’s investigation to Everitt, who, after
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receiving additional information from Martin, decided to terminate appellant. There is no
evidence that Addington acted other than in the best interest of Deere. Appellant has failed
to establish that Addington acted solely to harm appellant or for his own benefit. The trial
court’s grant of summary judgement with respect to count VI is affirmed.
¶ 65 Count IX–Interference by Martin
¶ 66 In count IX, appellant alleged Martin illegally participated in an investigation of
appellant’s personal life, permitted access to appellant’s personal e-mail, and permitted the
use of e-mails that did not occur during working hours and did not affect his work
performance as the basis of appellant’s termination. He further alleges that Martin disabled
appellant’s security badge and told security personnel not to allow him on the premises. His
final allegation in this count is that Martin recommended appellant be fired even though she
knew that other similarly situated employees had not been disciplined or terminated.
¶ 67 Appellant has presented no case law and made no argument supporting his claim that the
decision to prevent him from returning to work until the investigation had been concluded
was improper in any way. The record indicates that the decision was made that he could work
at home while the investigation was ongoing. We believe the decision to ensure the people
involved in this situation were kept separate during the course of the investigation was
prudent and in no way supports a claim of intentional interference by Martin.
¶ 68 Appellant’s allegation that Martin authorized a review of his “personal” e-mail is
disingenuous. The record indicates only that Martin authorized Digney to review appellant’s
work e-mail, not a personal e-mail account. Appellant presented no argument in his opening
brief concerning the illegality of Deere employees reviewing his work e-mail. The issue was
raised for the first time in his reply brief when he cited to section 9 of the Illinois Personnel
Record Review Act. 820 ILCS 40/9 (West 2010). Supreme Court Rule 341(h)(7) (eff. July
1, 2008) states that “[p]oints not argued are waived and shall not be raised in the reply brief.”
“This rule has been enforced by the reviewing courts of our State.” In re Estate of Jacobs,
189 Ill. App. 3d 625, 628 (1989). This issue is not properly before the court, and we do not
review it.
¶ 69 Martin informed Everitt that other Deere managers had been fired for conduct similar to
that of appellant. She provided a specific example of a manager who had been fired in 2008
after engaging in a single, consensual sexual encounter with a Deere administrative assistant.
She then recommended that appellant be terminated to remain consistent with recent Deere
decisions concerning other managers. Appellant makes no argument or factual showing
indicating these statements by Martin were not truthful. Nor does appellant provide evidence
that establishes Martin was aware of similarly situated employees who were not terminated
for similar activity since the company’s practice evolved to one of zero tolerance. The trial
court’s grant of summary judgment with regard to count IX is affirmed.
¶ 70 Counts X, XI and XII–Chisholm, Brockway and Digney
¶ 71 Appellant alleges in counts X, XI and XII that Chisholm, Brockway and Digney, after
learning that the allegations that appellant assaulted Alissa Maddox were not true, illegally
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directed that the investigation shift to appellant’s personal life, and then, based on that illegal
investigation recommended appellant be terminated. The record does not support any of
these allegations. First, the investigation never delved into the potential criminal accusations
made by Alissa Maddox. The record indicates that Chisholm, Brockway and Digney took
care not to interfere with a potential criminal investigation.
¶ 72 Appellant argues that this must not be true due to the fact the allegations of assault are
found in the investigative report. The report does contain references to the complaint that
instigated the investigation; however, it does not include any investigation of the alleged
assault. In fact, the report shows that as some witnesses started to talk about that issue,
Digney steered the conversation away from the topic of the assault.
¶ 73 The initial allegations made by Alissa Maddox were twofold: first, she said that she had
been assaulted by appellant; second, she claimed that Thielbert was being coerced into a
sexual relationship with appellant due to his position of authority at Deere. The focus of the
investigation was always on determining if any improper relationships existed at Deere and
the potential for workplace violence and harassment claims. To the extent appellant is
claiming this investigation violates section 9 of the Illinois Personnel Record Review Act,
he waived this argument by failing to argue it in his opening brief. Ill. S. Ct. R. 341(h)(7)
(eff. July 1, 2008); In re Estate of Jacobs, 189 Ill. App. 3d 625, 628 (1989).
¶ 74 Appellant argues that the investigation should have ended once Thielbert said that she
was not being coerced into a sexual relationship. He cites no authority for the proposition
that a company’s investigation of an employee cannot go beyond the initial allegations. In
this case, Digney’s review of the messages appellant received on his work phone indicated
that he had received inappropriate messages from an unknown number and had then
forwarded them to his personal account. Once the company was aware of appellant’s
involvement in this other potentially inappropriate employee-related relationship, additional
investigation was appropriate.
¶ 75 Neither Chisholm, Brockway nor Digney made any recommendations regarding what
should be done with respect to appellant. They merely investigated allegations made against
appellant. That the investigation ultimately concluded that appellant had acted
inappropriately, albeit not in the way initially alleged, does not indicate in any way that they
were not acting on behalf of the company. Chisholm, Brockway and Digney were simply
doing what they were hired to do.
¶ 76 There are no facts that indicate Chisholm, Brockway or Digney failed to act in the best
interest of the company. The trial court’s grant of summary judgment with regard to counts
X, XI and XII is affirmed.
¶ 77 Count XIII–Hornbuckle
¶ 78 In count XIII, appellant alleges that Hornbuckle intentionally interfered with appellant’s
employment by deciding to fire him for creating risks of work place violence and financial
liability for Deere, as well as for violating the electronic equipment policy, even though
Hornbuckle had reason to know that similarly situated employees had engaged in similar acts
and not been terminated or disciplined.
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¶ 79 Appellant argues that Hornbuckle acted out of a desire for retribution against him for a
claim of racial discrimination made in 2003. Again, he offers no facts other than his belief
that Hornbuckle acted out of a desire for revenge. He has failed to present an issue of
material fact concerning his claim of retaliation. See supra ¶ 65-69.
¶ 80 The evidence of Hornbuckle’s involvement is exceptionally minimal. He was part of the
conference call in which Everitt decided to terminate appellant. However, there is no record
that he made any recommendations regarding termination or that he had any part in the
investigation. Appellant makes much of the fact that Hornbuckle later admitted that he had
had an improper relationship with a subordinate. His argument is that since Hornbuckle was
not terminated, obviously, terminating appellant for an inappropriate relationship was a
sham. The problem with this theory is that there is no evidence that Hornbuckle terminated
appellant. If Hornbuckle did something wrong and was not terminated, this hardly gives rise
to a cause of action against Hornbuckle. What would the tort be called, “Failure to get fired”?
Also, appellant does not deny that he has had not just one, but several inappropriate
relationships with employees and wives of employees. It was not unreasonable for Deere to
conclude that such conduct was unacceptable.
¶ 81 Appellant has failed to come forth with any evidence that Hornbuckle did anything to
affect appellant’s employment status, let alone evidence that he did something for an
improper reason. The trial court’s grant of summary judgment with regard to count XIII is
affirmed.
¶ 82 CONCLUSION
¶ 83 The record clearly establishes that appellant’s conduct in having relationships not only
with subordinates, but also with wives and a daughter of employees created a risk of
workplace violence as well as a risk of financial liability for Deere. We find this appeal to
be totally devoid of merit.
¶ 84 For the foregoing reasons, the judgment of the circuit court of Rock Island County is
affirmed.
¶ 85 Affirmed.
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