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Kevin Carmody v. Charles Thompson

October 3, 2012

KEVIN CARMODY,
PLAINTIFF-APPELLANT,
v.
CHARLES THOMPSON,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Champaign No. 11L172 Honorable Michael Q. Jones, Judge Presiding.

The opinion of the court was delivered by: Justice Pope

Carla Bender 4th District Appellate Court, IL

JUSTICE POPE delivered the judgment of the court, with opinion. Justices Appleton and McCullough concurred in the judgment and opinion.

OPINION

¶ 1 In September 2011, plaintiff, Kevin Carmody, filed a complaint against defendant, Charles Thompson, for defamation per se, false light, and tortious interference with contractual relations following plaintiff's termination from the University of Illinois (University).

¶ 2 In November 2011, defendant filed a motion to dismiss pursuant to section 2-619(a)(1) of the of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-619(a)(1) (West 2010)), arguing the cause should instead be heard in the Court of Claims because defendant's actions were taken pursuant to his University employment.

¶ 3 In February 2012, the trial court granted defendant's motion to dismiss.

¶ 4 Plaintiff appeals, arguing the trial court erred (1) in granting defendant's motion to dismiss and, in the alternative, (2) denying his request for leave to amend his complaint. We affirm.

¶ 5 I. BACKGROUND

¶ 6 Prior to his termination, plaintiff worked for the University as the manager of systems services in the college of engineering. During the time plaintiff worked for the University, defendant worked as the assistant dean and director of the engineering information and technology (IT) shared services department in the college of engineering.

¶ 7 In 2009, plaintiff filed an unrelated civil lawsuit against David Goldberg involving an alleged assault. Plaintiff maintains during the pendency of the Goldberg litigation, he "found" a stack of papers in the Champaign News Gazette box at his home. Those papers included copies of emails relevant to his lawsuit against Goldberg. The emails were sent to and received from Deborah Thurston, a University employee. Plaintiff delivered the emails to the attorney representing him in his litigation against Goldberg. Plaintiff's attorney later used those emails as an exhibit (Exhibit A) in the Goldberg litigation.

¶ 8 Thereafter, the University charged plaintiff with improper use of and/or access to electronic communications of a University employee. The University investigated plaintiff's actions with regard to the emails. On September 7, 2010, the University issued a report containing a summary of the investigation and its findings. As a result of the report, plaintiff was sent a termination letter signed by defendant and dated September 23, 2010. The letter indicated plaintiff was given the opportunity to discuss the allegations, but he declined to answer questions related to the charges. That letter also stated the following:

"The University finds that you did in fact engage in the alleged misconduct, violating the University Code of Conduct and the Policy on Appropriate Use of Computers and Network Systems at the University of Illinois at Urbana-Champaign. In particular, we find that you attempted to use the substance of the email messages in 'Group Exhibit A' for non-University related purposes and without permission. It is more probable than not that the documents contained in 'Group Exhibit A' were obtained from Deborah Thurston's computer. Furthermore, it is more probable than not that you obtained the documents in 'Group Exhibit A' through improper access. As an [IT] professional, you did not immediately report the breach of security to your supervisor when you came into possession of the documents constituting 'Group Exhibit A'.

As you know, the protection and security of our information technology equipment and data are of utmost concern for the University. Given your position's responsibilities to ensure that security and because of your actions, we can no longer trust you to carry out the responsibilities of your position. As such, you cannot perform the essential functions of your position. Therefore, your employment is hereby terminated, effective today, September 23, 2010."

ΒΆ 9 On September 22, 2011, plaintiff filed a complaint against defendant for defamation per se, false light, and tortious interference with contractual relations based upon the false statements he argues defendant made in the termination letter. Plaintiff's complaint alleged, inter alia, defendant "intentionally and/or recklessly made false statements accusing [p]laintiff of obtaining documents, electronic mail, from Deborah Thurston's computer through improper access." Plaintiff alleged the report claimed "[a]ccording to senior IT professionals, the [emails] were obtained only from Thurston's computer." However, plaintiff alleged that, as a participant in the investigation, defendant knew no senior IT professional stated the emails came only from Thurston's computer. The report also claimed the recommendation for plaintiff's termination was based upon ...


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