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Vickers v. Abbott Laboratories

September 30, 1999

TROY L. VICKERS, PLAINTIFF-APPELLANT,
v.
ABBOTT LABORATORIES, DON ALBERT, RUDY SUNDBERG, DIANE MIELKE, DEBBIE LINDBERG-GEISER, NELLIE LOPEZ, JEANICE WALKER, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice Buckley

Appeal from the Circuit Court of Cook County. The Honorable Everett A. Braden, Presiding Judge.

Plaintiff, Troy L. Vickers, brought suits against Abbott Laboratories (Abbott) and Abbott employees Debbie Lindberg-Geiser, Nellie Lopez, Jeanice Walker, Diane Mielke, Rudy Sundberg, and Don Albert. Plaintiff alleged defamation, breach of contract, intentional infliction of emotional distress, and tortious interfer-ence with prospective economic advantage due to an Abbott investiga-tion into allegations that he exhibited sexually harassing behavior. The circuit court granted defendants' motion for summary judgment and dismissed plaintiff's suit with prejudice. Plaintiff appeals and maintains the following: (1) the circuit court erred in granting summary judgment on plaintiff's claim for defamation because no qualified privilege existed, and if a privilege did exist, defendants abused it; (2) the circuit court erred in granting summary judgment on plaintiff's breach of employment contract claim because defendants conducted an unfair investigation into the sexual harassment allegations; (3) the circuit court erred in granting summary judgment on plaintiff's claim for intentional infliction of emotional distress where the evidence demonstrated outrageous conduct on the part of the defendants; (4) the circuit court erred in granting summary judgment on plaintiff's claim for intentional interference with economic advantage; and (5) the circuit court erred by refusing to allow plaintiff leave to supplement the record.

FACTS

The pleadings and depositions reveal the following facts relevant to this appeal: In May 1967, plaintiff began work with Abbott as a technical advisor earning approximately $14,000 per year. Over the next 25 years, he received a number of promotions and eventually attained the position of manager of the microbials department in Abbott's chemical and agricultural products division (CAPD), earning an annual salary of $103,662.

On September 30, 1992, Debbie Lindberg-Geiser, a secretary in plaintiff's division, e-mailed a female manager, Janet Dewitt, about a manager who had been making remarks of a sexual nature to her. Later, while discussing the matter in person, Lindberg-Geiser told Dewitt that plaintiff was the manager who had told her how she looked in her clothing, talked of nude beaches in California, said that she "made him hot," and made other comments of a sexual nature.

Dewitt informed Lindberg-Geiser's manager, Sheldon Bernsen, about the issue. Bernsen contacted Lindberg-Geiser to discuss the matter and then notified defendant Rudy Sundberg, the divisional vice president for CAPD, who was both Bernsen and plaintiff's supervisor. Pursuant to Abbott policy, Sundberg met with CAPD human resources director Jeff Hogenmiller, who assigned defendant Don Albert to investigate the matter.

On October 7, 1992, Albert scheduled a meeting with Lindberg-Geiser to discuss her concerns. At this meeting she told Albert about plaintiff's conduct. He asked if anyone could corroborate any of plaintiff's statements, and Lindberg-Geiser replied that defendant Diane Mielke was present for some of the remarks. Albert also told her that he would be available to listen if other employees wished to speak with him.

After her meeting with Albert, Lindberg-Geiser contacted several of plaintiff's former secretaries, including Donna Brown, defendant Nellie Lopez, defendant Jeanice Walker and Nancy Ashley, to see if they would like to speak with Albert about their experiences with plaintiff. Defendants Walker, Lopez and Mielke indicated that they would speak with Albert. Then, as part of the Abbott investigation, Albert interviewed Dewitt, Bernsen, Walker, Mielke and Lopez concerning plaintiff's conduct. Plaintiff was in Africa on a business trip at this time.

In separate meetings with Albert, Walker and Lopez described numerous instances of plaintiff's sexually harassing conduct and of his abusive behavior toward subordinates, such as yelling and throwing objects. Albert also met with Mielke and learned that she had witnessed both the sexual remarks plaintiff made to Lindberg-Geiser and his abusive behavior.

At this time, Albert was aware that other Abbott employees had also experienced problems while working with plaintiff. In fact, prior to the Abbott investigation, several of plaintiff's subordinates (John Kane, Jim Brookshire, Ralph Hodash, Fred Woodman and Donna Brown) sought Albert's informal advice regarding plaintiff's management style. Each individual requested that the conversations be confidential and that no official action be taken. Albert had never pursued any of these complaints because none involved allegations of sexual harassment or discrimination.

On October 23, 1992, Albert met with Sundberg, Hogenmiller and Tom McNally, president of CAPD, to advise them of the status of the investigation. They discussed several options, including termina-tion, suspension and removal from management, but decided to wait and gather more information. Pending resolution of the investiga-tion, however, Albert and Sundberg suspended plaintiff with full pay and benefits. The record does not show that they revealed the identity of any witnesses interviewed to plaintiff.

On October 28, 1992, Albert and Sundberg met with plaintiff at his request. Plaintiff provided a rebuttal and identified the individuals he thought might have had problems with him. While almost every person plaintiff named had already given statements to the investigators, Albert and Sundberg still had not yet revealed their identities to plaintiff.

Upon completion of the Abbott investigation, Albert, Sundberg, Hogenmiller and McNally met and concluded that there was ample evidence supporting Lindberg-Geiser's allegations. According to CAPD management, this conduct constituted a violation of Abbott's sexual harassment policy warranting disciplinary action. Management also concluded that plaintiff's harsh treatment of subordinates had been improper.

Consequently, on November 2, 1992, Albert and Sundberg met with plaintiff and advised him of their decision. They told plaintiff that he could not remain in his current position as manager of the microbials department, or any other similar "Grade 20" position, because such positions required the supervision of other employees. Therefore, they offered plaintiff a senior planning position, which did not require the supervision of other employees. *fn1

On November 30, 1992, pursuant to Abbott personnel policy number 222 (policy 222), plaintiff appealed his reassignment directly to Robert Beck, corporate vice president-personnel, the highest stage of Abbott's five-level appeal process. Beck contacted McNally and Charles Brown to form a committee that could review the appeal. The committee issued a decision on January 19, 1993, and determined that the transfer of plaintiff to a nonsupervisory position was appropriate.

Plaintiff initially filed an Illinois Department of Human Rights claim but then dismissed it and filed a verified complaint in the circuit court of Cook County on June 15, 1993. On September 30, 1993, plaintiff filed a first amended verified complaint alleging defamation (count I) against all defendants, breach of an implied contract (count II) against Abbott, and intentional infliction of emotional distress (count III) and intentional interference with prospective economic advantage (count IV) against Abbott, Albert and Sundberg. In addition, paragraph 42 of the complaint alleged that the defendants "were motivated to harm Plaintiff's reputation and professional career *** because Plaintiff is a Black African American."

On April 24, 1997, defendants filed a motion for summary judgment pursuant to section 2-1005(c) of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-1005(c) (West 1996)), that stated the following: (1) all of plaintiff's claims were linked to his claim for race discrimination and were preempted by the Illinois Human Rights Act ()775 ILCS 5/1-101 et seq. (West 1996), and (2) if the claims were not preempted, there were no genuine issues of material fact and defendants were entitled to judgment as a matter of law. On June 30, 1997, the circuit court dismissed plaintiff's lawsuit because it contained repeated and specific allegations of race discrimination and was preempted by the Illinois Human Rights Act. However, the court did allow plaintiff an opportunity to amend the complaint.

On July 9, 1997, plaintiff filed a second amended verified complaint. This complaint attempted to substantively change counts III and IV by adding the secretaries as defendants. *fn2 However, on July 11, 1997, the trial court entered an order nunc pro tunc stating that its June 30 ruling should instead be treated as a ruling pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 1996)) and that it would consider the remainder of defendants' summary judgment arguments.

On July 18, 1997, the court granted defendants' motion for summary judgment and entered final judgment for all defendants as to each count of plaintiff's first and second amended verified complaints. Plaintiff filed a motion to reconsider, which the circuit court denied on October 15, 1997, and this timely appeal followed.

ANALYSIS

I. STANDARD OF REVIEW

Summary judgment shall only be granted if the pleadings, depositions and admissions, together with the affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1996); see Bass v. Prime Cable of Chicago, Inc., 284 Ill. App. 3d 116, 121 (1996). However, where material facts are disputed, the trial court must view all evidence in a light most favorable to the nonmoving party and draw all reasonable inferences from the facts presented in favor of the non-movant. In re Estate of Hoover, 155 Ill. 2d 402, 410-11 (1993). While "the summary judgment procedure is to be encouraged as an aid in the expeditious Disposition of a lawsuit [citation], it is a drastic means of disposing of litigation and therefore should be allowed only when the right of the ...


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