United States District Court, Northern District of Illinois, Eastern Division
February 19, 2002
SHERI CRAMPTON, PLAINTIFF,
ABBOTT LABORATORIES, DEFENDANT.
The opinion of the court was delivered by: Milton I. Shadur, Senior United States District Judge:
MEMORANDUM OPINION AND ORDER
Sheri L. Crampton ("Crampton") has filed a two-count Complaint against
her former employer Abbott Laboratories ("Abbott"), claiming that in
violation of Illinois law (1) Abbott terminated her unlawfully in
retaliation for her whistle-blowing activities and (2) Abbott breached a
series of option contracts by refusing to allow her to exercise stock
options granted under Abbott's Incentive Stock Option Programs.*fn1 Both
sides have now filed Fed. R. Civ. P. ("Rule") 56 summary judgment
motions,*fn2 with Abbott moving for summary judgment on both counts and
Crampton requesting summary judgment as to liability on the breach of
contract claim only. For the reasons set forth in this opinion,
Crampton's motion is granted, while Abbott's motion is accordingly denied
on the breach of contract claim but is granted on the retaliatory
Summary Judgment Standards
Familiar Rule 56 principles impose on each movant the burden of
establishing both the lack of a genuine issue of material fact and the
movant's entitlement to judgment as a matter of law (Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose this Court must
"read  the record in the light most favorable to the non-moving party,"
although it "is not required to draw unreasonable inferences from the
evidence" (St. Louis N. Joint Venture v. P & L Enters., Inc., 116 F.3d 262,
264, 265 n. 2 (7th Cir. 1997)). As Pipitone v. United States, 180 F.3d 859,
861 (7th Cir. 1999) has more recently quoted from Roger v. Yellow
Freight Sys., Inc., 21 F.3d 146, 149 (7th Cir. 1994)):
A genuine issue for trial exists only when a reasonable
jury could find for the party opposing the motion based
on the record as a whole.
Where as here cross-motions for summary judgment are
involved, it is thus necessary to adopt a dual
perspective. This opinion reflects that approach where
Crampton's Employment and Discharge
Crampton began working for Abbott on April 15, 1991 as a senior
Clinical Research Associate (A. St. ¶ 28). She was promoted twice,
so that in August 1998 she held the position of Assistant Director of
Clinical Research for the Macrolide Venture (A. St. ¶¶ 3, 28). In
that position she reported directly to Dr. George Aynilian ("Aynilian"),
Associate Venture Head of the Macrolide Venture, who in turn reported to
Venture Head Dr. Carl Craft ("Craft") (A. St. ¶ 4).
Throughout her employment at Abbott Crampton was actively involved with
the Abbott Research Quality Assurance, Standard Operating Procedures and
Guideline Rewrite Committee, and she was well-known for her knowledge of
clinical rules and regulations (C. Ex. H). In that regard she voiced
repeated complaints from 1992 to 1998, asserting violations of various
clinical protocols and FDA regulations by Abbott employees (A. St.
On August 3, 1998*fn3 Crampton sent this e-mail message to eight
Abbott employees, three of whom reported directly to her (A. St.
Subject: Searle/Monsanto HR Contact
For those who may be interested, here is the contact
person and e-mail address for the head of HR/hiring for
the Chicago area:
Linda Delavallade (formerly from Abbott as well!!)
She and her team are working on implementing upper
management's decisions (post merger with Monsanto) who
stays in Chicago-land, who has to relocate to the east
coast, who has an option to relocate, etc. They should
be finished with that process in a week or two. If you
want to contact her first to discuss possible openings,
her phone number is 982-7211 and fax is 982-4637.
Otherwise, if you have a current CV, you can attach it
to a memo and send it via e-mail.
Good luck! And will the last one out please turn off
Craft found a copy of that e-mail in his in-basket on August 4 (id.
¶ 32). After reading the e-mail he spoke with his boss, Dr. Leonard
("Leonard"), as well as with the Manager and the Director of Human
Resources (id. ¶ 35). Leonard believed the e-mail was so disruptive
and inappropriate as to warrant Crampton's immediate termination and
further believed that Crampton had violated her employment agreement with
Abbott (id. ¶¶ 36, 37).*fn4
various Abbott executives agreed
that Crampton's e-mail displayed poor judgment and disloyalty and
warranted termination (id. ¶¶ 36, 41), Craft was ultimately
responsible for the termination decision (C. Add. St. ¶ 92).
Human Resources Manager Michael Spengler ("Spengler") met with Crampton
on August 6 to discuss the e-mail (A. St. ¶ 42). At the meeting
Crampton said that she did not think the e-mail was a problem (id.
¶ 43) and attempted to explain that she intended the last line as a
joke (C. Add. St. ¶ 87). On August 10, 1998 Craft and Spengler met
with Crampton and told her that she had been terminated because of the
lack of judgment, loyalty and professionalism reflected in the e-mail
(id. ¶ 50).
Crampton's Stock Options
Crampton was granted stock options three times during her years at
Abbott: in 1995, 1996 and 1997 (C. St. ¶¶ 2-4). At the time of her
termination she had options for over 5000 shares available for exercise
(C. St. ¶ 5). Each grant was pursuant to an option contract, and
each contract contained a materially identical provision under which a
terminated employee could exercise an option within three months after
his or her last day of work, except that each option would terminate
immediately if the employee were to "engage , directly or indirectly,
for the benefit of the employee or others, in any activity, employment or
business . . . which, in the sole opinion and discretion of the
Compensation Committee, is competitive with the company or any of its
subsidiaries" (id. ¶ 6).
Elizabeth Fowler ("Fowler") is the Abbott employee who processes the
exercising of stock options (C. St. ¶ 13). She was notified on
August 28 that Crampton had been terminated, and she asked Jill Mueller
in Human Resources to obtain a document known as the non-compete
verification form (A. St. ¶ 69), which sets out whether a former
employee is competing with Abbott in his or her new employment (id.).
On September 2 Crampton's husband Demetre Svolopoulos ("Svolopoulos")
telephoned Fowler, saying that Crampton wished to exercise her options
and asking Fowler to send him the exercise forms (C. St. ¶ 18).
Fowler told him the options could not be exercised until Fowler had the
non-compete verification form (C. St. ¶ 19). Svolopoulos said
truthfully that his wife was not employed at the time and was currently
seeking employment (C. St. ¶ 20). Fowler made another attempt to
obtain the form from Human Resources later that same day, and she
ultimately received it on September 8 (C. St. ¶¶ 21, 23). In response
to the question "[w]ill the optionee be competing with the company in
his/her new employment?" the form was marked "no," but there was a
handwritten qualifier stating "do not know her plans at this time" (A.
St. ¶ 76).
"In the perfect world, if in fact time allowed," Fowler would try to
send a letter to any terminated employee who was not competing, advising
the employee of the last date for exercise of stock options, as well as
about the stock option statement (Fowler Dep. 56). If time were too
short, a telephone call would be tried instead (id. 57). But Fowler did
neither of those things for Crampton, assertedly because Fowler was
unsure whether Crampton was terminated or was on leave status (id.).
Instead Fowler didn't communicate with Crampton for fully two months
after she had the Human Resources form in hand on September 8.
Although Crampton was not employed on September 2, she signed a
contract with Agouron Pharmaceuticals on September 29 and began work
there on October 5 (C. St. ¶ 50). On November 10 or 11 Fowler
telephoned Crampton, who said she still wished to exercise her options
CC. St. ¶ 31).
On November 11 Crampton asked Fowler to fax her a
stock option exercise form and told Fowler that she was employed (C. St.
¶ 32). That same day Fowler faxed Crampton two forms with a direction
that she "send a check payable to Abbott Laboratories in the amount of
$125,289.96" post-marked no later than November 17 (C. St. ¶ 34).
Fowler wrote a note on the form that Crampton's exercise was "Subject to
Noncompete Verification" (A. Add. St. ¶ 5). She then reported
Crampton's employment to Human Resources (C. St. ¶¶ 33, 40). On
November 17 and 18 Fowler received payment for the options (C. St.
¶ 42, A. Add. St. ¶ 7).
Then on November 19 Fowler received an e-mail from Spengler stating
that Crampton was working in a competing position (C. St. ¶ 44). By
November 25 Abbott had determined that Crampton would not be allowed to
exercise her options because her employment with Agouron was competitive
with Abbott (C. St. ¶ 46). On December 4 Fowler wrote Crampton that
she would not be allowed to exercise and returned her check, which had
never been deposited (C. St. ¶ 48, A. Add. St. ¶ 9).
Even though Illinois is an employment-at-will state, the tort of
retaliatory discharge provides a narrow exception to the general rule
that employment is terminable at any time for any reason or for no reason
at all (Johnson v. World Color Press, Inc., 147 Ill. App.3d 746, 748,
498 N.E.2d 575, 576 (5th Dist. 1986)). That narrow exception is described
succinctly in Lanning v. Morris Mobile Meals, Inc., 308 Ill. App.3d 490,
491, 720 N.E.2d 1128, 1129 (3d Dist. 1999), quoting Jacobson v. Knepper &
Moga, P.C., 185 Ill.2d 372, 376, 706 N.E.2d 491, 493 (1998):
A claim of retaliatory discharge is permissible where
"an employee is discharged in retaliation for the
reporting of illegal or improper conduct," also known
as "whistle blowing."
To establish a valid claim fitting that mold a plaintiff must show that
(1) he or she has been discharged, (2) the discharge was in retaliation
for his or her activities and (3) the discharge violates a clear mandate
of public policy (Hartlein v. Ill. Power Co., 151 Ill.2d 142, 160,
601 N.E.2d 720, 728 (1992)). Public Policy
Crampton alleges that her termination was contrary to the state and
federal public policy favoring compliance with governmental regulations
in the testing, reporting and marketing of pharmaceuticals to be sold to
Illinois citizens (Complaint ¶¶ 33-34). To qualify for the
retaliatory discharge exception a public policy "must strike at the heart
of a citizen's social rights, duties, and responsibilities" (Palmateer
v. Int'l Harvester Co., 85 Ill.2d 124, 130, 421 N.E.2d 876, 878-79
(1981)) or involve the protection of the health and safety of citizens
generally, rather than implicating purely private interests (Doherty v.
Kahn, 289 Ill. App.3d 544, 559, 682 N.E.2d 163, 174 (1st Dist. 1997),
citing Wheeler v. Caterpillar Tractor Co., 108 Ill.2d 502, 511,
485 N.E.2d 372, 377 (1985)).
Here the asserted source of the public policy is the pronouncement of
the Illinois Supreme Court in Palmateer, 85 Ill.2d at 132, 421 N.E.2d at
879-80, relying in part on the preamble to the Illinois Constitution:
There is no public policy more important or more
fundamental than the one favoring the effective
protection of the lives and property of citizens.
That categorization has been found sufficient to state a claim in several
contexts (see, e.g., Lanning, 308 Ill. App.3d at 493, 720 N.E.2d at
Sherman v. Kraft Gen. Foods, Inc., 272 Ill. App.3d 833, 838-39,
651 N.E.2d 708, 712 (4th Dist. 1995); Balla v. Gambro, Inc.,
145 Ill.2d 492
, 499, 584 N.E.2d 104
, 107-08 (1991); Wheeler, 108 Ill.2d
at 510-11, 485 N.E.2d at 377).
While some of Crampton's complaints (including improper intra-company
billing and falsification of expense reports (A. St. ¶¶ 8, 12, 18))
do relate solely to Abbott's private interests, others may implicate the
Palmateer-described policy. Thus in 1995 or 1996 Crampton complained that
Craft was promoting a drug for an unapproved indication (id. ¶ 14),
and she told an audience of physicians to whom he was giving a
presentation that he had omitted data pertaining to patient death rates
(id. ¶ 15); in 1997 she complained that investigators had changed
the definitions of "cure" and "failure" so that more patients fit the
definition of "cure" (id. ¶ 19); and in 1998 she challenged an
investigator's data as fraudulent (id. ¶¶ 21-22).
Because the ensuing discussion shows that Crampton's failure on the
causation element of her retaliatory discharge claim torpedoes the entire
claim, this opinion need not decide such difficult state law questions as
(1) whether Crampton's particular complaints were indeed serious enough
to invoke the policy protecting the lives and property of Illinois
citizens and (2) whether violations of regulatory practices in the United
Kingdom and France can implicate Illinois public policy. Hence this Court
turns directly to the issue of causation.
Under Illinois law the burden of proving all elements of a retaliatory
discharge claim remains with plaintiff at all times (Clemons v. Mech.
Devices Co., 184 Ill.2d 328, 338-39, 704 N.E.2d 403, 407-08 (1998)). As
for the causation element, the ultimate issue is the employer's motive
— if the employer has a valid nonpretextual basis for discharging
the employee, the employee loses (Hartlein, 151 Ill.2d at 160, 601 N.E.2d
at 728). In the present context, Crampton's burden is to demonstrate the
existence of a genuine issue of material fact on that score.*fn5
Abbott maintains that Crampton's termination had nothing to do with her
whistle-blowing and was a direct response to the poor judgment and lack
of loyalty displayed by her encouraging subordinates to seek employment
with a competitor in her August 3 e-mail (A. St. ¶¶ 47-48, 50) In an
attempt to label that explanation as pretextual, Crampton argues that
other employees who engaged in the same conduct were neither investigated
nor terminated (A. St. ¶ 51-57, C. Add. St. 74-83) : She points to
Jon Avila ("Avila"), who printed job postings from the Internet and
shared them with other employees (C. Add. St. ¶¶ 74-76), and to Linda
Swanson ("Swanson"), Assistant Director of the Macrolide Venture, who
told Crampton about job opportunities at another pharmaceutical company
and then sent her an e-mail identifying the relevant contact person (C.
Add. St. ¶¶ 77-80, C. Ex. O). Here is the text of Swanson's e-mail
(C. Ex. O):
Subject: Helene's Pearlman-Beckman's number
She still uses Pearlman. Her number is 847 509 1595,
As to Avila's conduct Abbott responds, and this Court agrees, that he
and Crampton were not similarly situated. To that end a court must look
at all the relevant factors (Radue v. Kimberly-Clark Corp., 219 F.3d 612,
617 (7th Cir. 2000)). In matters of discipline a plaintiff must normally
show that the assertedly comparable employees "dealt with the same
supervisor, were subject to the same standards, and had engaged in
similar conduct without such differentiating or mitigating circumstances
as would distinguish their conduct or the employer's treatment of them"
(id. at 617-18). Here Avila was a clinical research associate, while
Crampton was an Assistant Director of Clinical Research — the
supervisor of clinical research associates (A. St. ¶¶ 3, 57). It was
because of her leadership role and her high level position that Abbott
considered her conduct particularly egregious and worthy of termination
(A. St. ¶¶ 40-41). In the related area of employment discrimination
(where the issue of "similarly situated" employees also plays a critical
role), Illinois caselaw expressly distinguishes between employees
occupying such significantly different levels within the employer's
hierarchy (Traficano v. Dep't of Human Rights, 297 Ill. App.3d 435, 440,
697 N.E.2d 372, 375 (1st Dist. 1998)). Relatedly, Crampton sent the
e-mail to employees whom she directly supervised (A. St. ¶ 31),
while she has not shown that Avila shared postings with his
subordinates. But perhaps most importantly, Crampton has not shown that
her managers (who were her decisionmakers) were even aware of Avila's
As for the e-mail sent by Swanson (who unlike Avila was Crampton's
peer), Abbott urges that it was merely passing along a telephone number
without further comment (A. Mem. 7). Aynilian testified that if he had
known of the Swanson e-mail (something that he disputed*fn6), he would
not have alerted Human Resources or investigated that e-mail because it
was simply two individuals sharing a phone number (Aynilian Dep. 75-76).
In contrast to Crampton's e-mail, Swanson's does not refer to another
company, encourage submission of a resume, or on its face violate the
terms of Abbott's employment agreement. While Crampton's e-mail was sent
to several subordinates, Swanson's went to a single co-worker of equal
stature within the company. And again, any contention that Crampton's
supervisors were aware of Swanson's e-mail before Crampton herself was
terminated is on shaky ground at best (see n. 6).
Crampton posits that both Craft and Aynilian admitted that they would
not fire another person under similar circumstances (C. Ans. Mem. 5, C.
Add. St. ¶ 81). Those assertions are without record support and
distort the evidence actually presented. In fact Aynilian testified that
he did not consider Swanson's e-mail to be the same as Crampton's and
that he would not have investigated that e-mail incident (A. R. Mem. Ex.
5 at 74-76). And Craft's testimony merely states that if Crampton's
e-mail had actually contained language attempting to forewarn job-seeking
co-workers of unstable working conditions at Searle, an explanation
contradicted by the plain language of the e-mail, he would not have had a
problem (C. Add. St. ¶ 90, Craft Dep. 83). Crampton's unsupported
conclusions certainly do not constitute evidence of causation.
Nor does Crampton's other evidence assist her in creating an inference
of retaliation. Initial confusion as to whether Aynilian or Craft was
ultimately responsible for Crampton's termination simply does not create
a reasonable inference, as Crampton would have it, that Abbott misled her
in an attempt to hide the fact that Craft was retaliating for Crampton's
whistle-blowing CC. Add. St. ¶¶ 95-96, C. Ans. Mem. 6). As for
Abbott's destruction of Crampton's electronic files, Abbott presented
uncontested evidence that the files were destroyed in the normal course
of business (A. R. Mem. Ex. 7).
Crampton's assertions that her termination was in retaliation for her
whistle-blowing activities are further belied by the history of her
employment at Abbott. During the 1992-98 years in which she was a
self-proclaimed whistle-blower, Crampton was promoted twice, given eight
salary increases and granted stock options three times (A. St. ¶¶
Although Crampton may well believe that she was treated unfairly by
Abbott, she cannot create a reasonable inference that such treatment was
actionable, for she has presented no evidence from which such an
inference of retaliation may fairly be drawn.
In retaliatory discharge cases summary judgment is appropriate where the
plaintiff fails to present evidence sufficient to raise a genuine issue of
material fact as to motive (Carter v. G.C. Elec., 233 Ill. App.3d 237,
241, 599 N.E.2d 11, 13 (2d Dist. 1992)). Hence Abbott is entitled to
judgment as a matter of law on that claim.*fn7
Breach of Contract
To succeed on a breach of contract claim under Illinois law, a
plaintiff must prove the existence of a contract, performance by
plaintiff, breach by defendant and resultant injury to plaintiff
(Gallagher Corp. v. Russ, 309 Ill. App.3d 192, 199, 721 N.E.2d 605, 611
(1st Dist. 1999)). Here the parties advance different interpretations of
this contractual language (C. St. ¶ 6) in support of their
cross-motions for summary judgment:
4. Subject to paragraph 10, if employment of the
employee with the company and its subsidiaries
terminates, for any reason other than retirement,
disability or death, this option
may be exercised
by the employee to the extent permitted under
paragraph 3 [vesting] within three (3) months
after the employees's [sic] last day of work, but
not beyond the original term of the option.
10. Notwithstanding paragraphs 4, 5 and 6, this option
shall immediately terminate in the event the employee
engages, directly or indirectly, for the benefit of
the employee or others, in any activity, employment or
business during employment or within twelve (12)
months after the date of termination or retirement*fn8
which, in the sole opinion and discretion of the
Compensation Committee, is competitive with the
company or any of its subsidiaries.
Breach of Contract on or Within Days After September 2
Crampton argues that those contractual terms do not bar the exercise of
stock options as long as the individual is not competing at the time of
his or her desired exercise. Thus, the argument goes, because she was not
working for a competitor of Abbott on September 2 (when her husband first
telephoned Fowler and asked to exercise her options), Abbott's delay and
subsequent refusal constitute a breach off contract (C. Mem. 7-8). Abbott
counters by contending that the contracts require former employees to
refrain from engaging in competitive employment for the full three-month
period following termination — in other words, that options
terminate immediately if an employee engages in competitive employment
during the ensuing three months, irrespective of whether the employee was
competing at the time he or she expressed the desire to exercise (A.
Ans. Mem. 3-5).
But a conclusive and fatal flaw (and there are others) in Abbott's
"wait-and-see" argument is that it expressly admitted the converse in its
Response to Crampton's initial LR 56.1 statement — there Abbott
flatly confirmed that the non-compete clause does not bar the option's
exercise as long as the person desiring to exercise is not competing at
the time of the request (C. St. ¶ 9 and A. Resp. ¶ 9):
9. The non-compete clause (paragraph 10 in exhibits
B, C and D) does not bar exercise of stock options
so long as the person is not competing at the time
of exercise. This applies even if the person does
not know if he or she will be competing at any
time subsequent to the exercise of stock options.
Fussell dep. at 33-35.
Moreover, Crampton's assertion to that effect is based directly on the
damning admission by Abbott's Vice President of Compensation and
Development Stephen Fussell ("Fussell"), who is in charge of the
administration of stock options (A. St. ¶ 88, C. St. ¶ 8).
Fussell testified at his Dep. 34-35:
A: If the question is outright no, they are not
competing, then I would have to say the noncompete
would not be enforced and they would be allowed to
exercise shares, if I know they are not competing.
Q: What if a person doesn't know if they are
going to be competing in two weeks or a month, how does
that affect you, if at all?
A: If they are not competing at the time and we
know that and can ascertain that in our conversations
with them, then I would process this through as a
Thus Abbott's own interpretation of the contractual language refutes
the position it now advances. Nothing daunted, Abbott proffers a fallback
position: Crampton assertedly failed to make a valid exercise attempt on
September 2 because her husband's phone call to Fowler did not comply
with another contractual requirement (C. St. ¶ 6(c)):
15. The option may be exercised only by delivering to
the secretary or other designated employee of the
company a written notice of exercise, specifying the
number of common shares with respect to which the
option is then being exercised, and accompanied by
payment of the full purchase price of the shares being
purchased in cash, [or by one of other enumerated
methods of payment].*fn11
But although that language does require a written notice of exercise
accompanied by payment (something that did not take place on September
2), Abbott cannot bootstrap itself into such a defense because the
noncompliance was caused by Abbott's own refusal to supply the form that
it treated as necessary to satisfy the writing requirement (Swaback v.
Am. Info. Techs. Corp., 103 F.3d 535, 542-43 (7th Cir. 1996); Wasserman
v. Autohaus on Edens, Inc., 202 Ill. App.3d 229, 239, 559 N.E.2d 911
(1st Dist. 1990)).
Abbott argues that the quoted language permits Crampton to exercise her
options without the exercise form by submitting any form of written
notice, thus purportedly rendering irrelevant Fowler's refusal to fax
Crampton the stock exercise form when her husband requested it on
September 2 (A. Ans. Mem. 7). But that contention is also directly belied
by one of Abbott's own people — this time by Abbott's employee who
processes stock option exercises, Fowler. Here is her testimony confirming
that a signed stock option exercise form is a prerequisite to such
exercise (Fowler Dep. 21, 22, 74):
Q: So at any rate, there's an exercise form that
the person has to fill out, is what you're saying?
Q: Okay. In any case, for a person to exercise, they
have to — If I'm understanding this correctly,
they have to do two things: They have to fill out this
form indicating they want to exercise;
then they have
to in some fashion pay for the stock?
A: They have to submit the form with some sort of
Q: So this is the typical stock option exercise
form that any employee at Abbott is going to need to
sign in order to exercise stock options?
A: Any domestic employee.
Thus both parties understood the "written notice of exercise" language
to require submission of the form as a necessary condition for the
exercise of Crampton's stock options (such a mutual understanding is part
of the factual matrix under such cases as Arthur Rubloff & Co. v. Comco
Corp., 63 Ill. App.3d 362, 367, 380 N.E.2d 15, 19 (2d Dist. 1978)). And a
party such as Abbott has an obligation to bring about the occurrence of
such a condition precedent that is wholly within its control (E.B. Harper
& Co. v. Nortek, Inc., 104 F.3d 913, 919 (7th Cir. 1997) (Illinois law);
Kipnis v. Mandel Metals, Inc., 318 Ill. App.3d 498, 505, 741 N.E.2d 1033,
1038 (1st Dist. 2000)). So Fowler's refusal to provide the form to
Crampton because she did not have the "required" non-compete verification
form, a "requirement" that is not at all articulated in the option
contracts, prevented Crampton from completing the formalities necessary
to exercise her options right then and there.
In that respect Crampton points to Swaback, 103 F.3d at 537-43. Though
dealing with a legally comparable situation in an ERISA case, the Court
of Appeals relied on contract law in reaching its decision (id. at 542):
It is basic contract law that a party who prevents the
occurrence of a condition precedent may not stand on
that condition's non-occurrence to refuse to perform
his part of the contract.
Illinois contract law incorporates the self same principle (Wasserman,
202 Ill. App.3d at 239, 559 N.E.2d at 918).
Here Fowler gave Crampton's husband misinformation equivalent to what
triggered the decision in Swaback by telling him that the options
couldn't be exercised until Fowler had the non-compete verification form
from Human Resources. According to Fowler herself, she told Svolopoulos
on September 2 "[s]he's unable to exercise at this point in time because
I don't have this piece of paper I need from human resources" and
"[r]emember, you can't do anything until I have this piece of paper"
(Fowler Dep. 40-41). Yet nowhere in the option contracts is there any
mention of such an internal form (C. St. ¶ 53). It is universal
conventional wisdom that where a written contract purports on its face to
be a complete expression of the parties' agreement, a court will not add
another term about which the contract is silent (Am. States Ins. Co. v.
A.J. Maggio Co., 229 Ill. App.3d 422, 426, 593 N.E.2d 1083, 1086 (2d
Dist. 1992)). In this instance, because Abbott's refusal to provide
Crampton with the necessary exercise form on September 2 was based on the
phantom requirement of a non-compete verification form, Abbott may not
rely on Crampton's failure to submit that form as a defense.
Abbott attempts to draw one final arrow from its quiver: It claims
finally that it was under no obligation to provide the form because
Crampton had been given one when she signed each option contract (A.
Ans. Men. 7). But that arrow is as devoid of a point as all the others,
for the law is otherwise: Where as here one party's cooperation is
necessary to secure the other party's performance, there is an implied
contractual condition that such cooperation will be afforded (Kipnis, 318
Ill. App.3d at 505, 741 N.E.2d
at 1038). And further undercutting
Abbott's last-ditch contention, Fowler herself testified that because
many employees misplaced the forms, she routinely faxed them to former
employees who so requested (C. St. ¶ 16).
Because the just-discussed contract interpretation issue is
dispositive, this opinion need not address the additional issues of (1)
whether the Compensation Committee properly delegated its authority to
make non-compete decisions and (2) whether Fowler's acceptance of
Crampton's payment despite her knowledge that Crampton was employed
operated as a waiver of the non-compete provision. No view is expressed
here on either subject.
To exercise her stock options Crampton had only, within three months of
her termination and while not doing competitive work, to fill out the
required exercise form and submit it along with payment. On September 2,
less than a month after her termination, Crampton was not doing
competitive work and was prepared to submit the form and the money (C.
St. ¶ 18). And at that point Abbott knew that Crampton was not
working and wished to exercise her options, for her husband told Fowler
just that (id. ¶¶ 18, 20). But instead of honoring and processing
Crampton's request, Fowler refused to fax Crampton the form required for
that purpose — and refused solely because of a self-created
impediment nowhere present in the option contracts. That being the case,
Abbott has breached the contracts, making the non-compete clause an
irrelevancy and entitling Crampton to summary judgment on that claim.
Crampton has not carried her burden of showing a genuine issue of
material (that is, outcome-determinative) fact on her retaliatory
discharge claim. That being the case, Abbott is entitled to a judgment as
a matter of law and Abbott's summary judgment motion is granted. That
claim is dismissed.
There is also no genuine issue of material fact on Crampton's breach of
contract claim, but this time that compels judgment as a matter of law in
Crampton's favor rather than Abbott's. As a matter of law, Abbott's
refusal to honor Crampton's timely request to exercise her stock options
was a breach of its obligations under the option contracts. Hence
Crampton's motion is granted, so that judgment is ordered to be entered
in her favor as to liability (Abbott's cross-motion is of course
With the issue of liability having been thus resolved, Crampton is
entitled to damages stemming from Abbott's refusal to process her option
request. This action is set for a status hearing at 8:30 a.m. February
28, 2002 to discuss the procedures and timetable needed to resolve that
SUPPLEMENT TO MEMORANDUM OPINION AND ORDER
After plaintiff Sheri L. Crampton ("Crampton") had filed the final
brief in conjunction with her cross-motion for partial summary judgment
against defendant Abbott Laboratories ("Abbott"), counsel for Abbott
advised this Court's minute clerk of Abbott's concern that a portion of
Crampton's Reply Memorandum required some response. This Court waited a
few days to receive what it expected to be a very short submission
(perhaps two or three pages) in that respect, but when none was
forthcoming this Court assumed that Abbott's counsel had decided to let
the matter go, and it issued its February 19 memorandum opinion and order
("Opinion") in the regular course.
Within hours after the Opinion had been issued, Abbott's counsel
delivered to this Court's chambers its Surreply to Plaintiff's Motion for
Summary Judgment, an eight-page memorandum with attached exhibits that
takes issue with one facet of Crampton's Reply Memorandum. But as an
examination of the Opinion will reveal, nothing in Crampton's
presentation to which Abbott now takes exception has played any role in
this Court's ruling. Accordingly the Opinion stands as is, without any
need for revision.