The opinion of the court was delivered by: Michael P. McCUSKEY U.S. District Judge
Wednesday, 15 May, 2013 11:25:43 AM Clerk, U.S. District Court, ILCD
This case is before the court for ruling on the Motion to Dismiss Plaintiff's Complaint (#7) filed by Defendants, Board of Trustees of the University of Illinois, Ilesanmi Adesida, Sharon Reynolds, Joseph Bohn, Deborah S. Stone, Elyne Cole, Michael Hogan and Jong-Shi Pang. This court has carefully considered the Complaint (#1) filed by Plaintiff, Kevin Richard Carmody, the exhibits attached to the Complaint and the arguments of the parties. Following this careful and thorough review, Defendants' Motion to Dismiss Plaintiff's Complaint (#7) is GRANTED.
Plaintiff worked for the University of Illinois (University) in the Department of Industrial Enterprise Systems Engineering (IESE) as an academic professional with the job title of Manager of Systems Services. Plaintiff worked under a 12 month contract and held the same position for 22 years. He was employed by the University for nearly 25 years. In 2009, Plaintiff filed a lawsuit in the circuit court of Champaign County against David Goldberg, a tenured professor in the College of Engineering. Plaintiff alleged that, during the pendency of the Goldberg litigation, on or about June 8, 2010, he received unsolicited documents in his home Champaign News-Gazette box. These documents had been sent previously via e-mail or attachments thereto to and/or from Professor Deborah Thurston, a University employee. The Thurston e-mails were relevant to Plaintiff's litigation against Goldberg because they were inconsistent with affidavits Thurston provided during the Goldberg litigation.
Plaintiff delivered the e-mails to one of the attorneys representing him in the Goldberg litigation. Plaintiff's attorneys filed what they thought was an appropriate Motion which included the Thurston e-mails. Plaintiff's attorneys knew that the attorneys representing Goldberg, who had been retained for Goldberg by the University, would provide copies of the Motion and accompanying documents to University counsel and University counsel would advise Thurston and take such action as appropriate.
On June 25, 2010, Judge Leonhard, who was handling the Goldberg litigation, held a hearing and ordered that the Thurston e-mails be placed under seal pending litigation of further claims of privilege or relevance. Judge Leonhard also entered a protective order which stated that there was to be "no secondary dissemination" of the contents of the e-mails. At some point, either prior to or contrary to Judge Leonhard's order, agents or employees of the University received a copy of the Thurston e-mails.
On July 19, 2010, Defendant Ilesanmi Adesida, Dean of the College of Engineering, sent Plaintiff a letter which stated that it was a meeting notice. The letter stated that the College of Engineering had been alerted to serious concerns related to improper use of and/or access to electronic communications. The letter stated that Plaintiff was being notified that he was the subject of an investigation into these concerns. The letter stated that the misconduct allegations were based on the following:
It is alleged that on June 23, 2010, your attorney filed a document called "Exhibit A". The exhibit contained some emails from or to University employee Deborah Thurston from 2005 and 2007. The materials included attorney-client privileged communications, job related communications and personal correspondence. You are not listed as a recipient or author of any of the email messages. It is alleged that you attempted to use the substance of the email messages for non-University related purposes and without permission. Furthermore, there are open questions regarding how you came to be in possession of these documents, specifically whether you obtained them through improper access.
The letter stated "[i]f substantiated, such acts of misconduct are a violation of university policy, including but not limited to the University Code of Conduct and the Policy on Appropriate Use of Computers and Network Systems at the University of Illinois at Urbana-Champaign." The letter also stated that these were "very serious allegations that may result in disciplinary action, up to and including immediate dismissal." The letter stated that a meeting had been scheduled for June 21, 2010, and that "[a]t this meeting you will have an opportunity to respond to all charges, with an understanding that University officials will determine whether it is more likely than not your actions were a violation of University policy." The letter further stated that Plaintiff was being placed on administrative leave, with pay, pending the outcome of the investigation.
According to Plaintiff's Complaint, none of the policies cited in the letter "actually contained a prohibition to an employee receiving documents from an anonymous source that had relevancy to a pending State civil litigation from delivering those documents to the attorney involved in the civil litigation and that attorney then making appropriate filings and participating in appropriate discovery proceedings."
A meeting was held on June 28, 2010, which Plaintiff's attorney, Robert Kirchner, attended.*fn2 Plaintiff alleged that Defendant Joseph Bohn, Labor and Employee Relations Specialist at the University, and Defendant Sharon Reynolds, Assistant Director of the University's Office of Academic Human Resources, "confirmed that they were in possession of a copy of the sealed Thurston e-mails and that they intended to question the Plaintiff about the contents and substance of the same." Kirchner advised Bohn and Reynolds, and the attorney representing the University, that he would not allow Plaintiff to violate Judge Leonhard's order. Kirchner sent a letter, dated August 3, 2010, to Rhonda Perry, Associate University Counsel, confirming that he advised her at the meeting that he would not allow Plaintiff to violate the order "by discussing or disclosing the contents of the sealed materials." Kirchner stated that he also told her that "by insisting that he do so, University personnel would be acting in violation of the order as well." Kirchner acknowledged that Perry disagreed with this assessment.
On August 11, 2010, Perry sent a letter to Kirchner which stated that it was her understanding that Judge Leonhard "sealed the documents to prevent further dissemination of the documents by the parties and their attorneys because of the concerns with how the documents were obtained." She stated:
The University, as the owner of both the documents and the servers and equipment from which they were most likely obtained, is now attempting to investigate and determine what happened. I do not believe it was the intent of the Judge to prevent the University from using its documents as necessary in order to determine if there has been a breach of University security and/or a breach of trust and responsibility of any University employees.
Perry stated that the University would proceed with the investigation. According to Plaintiff, his attorney took steps to have Judge Leonhard's order vacated or modified, but that did not happen until September 23, 2010.
On September 7, 2010, Bohn and Reynolds sent a letter to Charles Thompson, Assistant Dean and Director, OIS Engineering Administration, and Defendant Deborah Stone, Director of the Office of Academic Human Resources. This letter set out the findings of the investigation. The letter stated that, as Manager of Systems Services, Plaintiff provides information technology support to IESE employees "both remotely and through direct physical contact with employee computers." The letter also stated that Plaintiff's attorney filed a document called "Group Exhibit A" in the civil lawsuit against Goldberg. The letter stated that the e-mails in "Group Exhibit A" included attorney-client privileged communications, job related communications and personal correspondence and that "[a]ll of the emails in 'Group Exhibit A' were either between Deborah Thurston and David Goldberg or about David Goldberg." The letter stated that Thurston did not provide copies of the e-mails to Plaintiff and did not authorize anyone, including Plaintiff, to make copies, meaning that a breach of security occurred. The letter stated that, when Plaintiff "became aware of the documents constituting 'Group Exhibit A', he did not immediately report the breach of security to his supervisor." The letter stated that as an information technology professional, Plaintiff had "a duty to report breaches of security." The letter also stated that Plaintiff did not receive permission from his supervisor, Defendant Jong-Shi Pang, IESE Department Head, or Thurston for his attorney to use the substance of the e-mail messages in his personal litigation. The letter stated that Plaintiff's unauthorized use of the documents "created an unsafe environment for employees and a disruption in the workplace." The letter acknowledged that Plaintiff's attorney represented that Plaintiff had found the documents in his News-Gazette box at home. The letter concluded:
Mr. Carmody attempted to use the substance of the email messages in "Group Exhibit A" for non-University related purposes and without permission. Furthermore, it is more probable than not that Mr. Carmody obtained the documents in "Group Exhibit A" through improper access. In addition to violating policy, Mr. Carmody's misconduct violates the trust and confidence entrusted to him as a University Information Technology (IT) professional, casting significant doubt on his ability to perform his essential job duties.
In light of our conclusions, and given the seriousness of the violations, we recommend Mr. Carmody's employment with the University be terminated effective immediately.
On September 9, 2010, Kirchner sent a letter to Perry and asked for an opportunity to respond to the "false information included in the September 7th correspondence." Kirchner also complained that a new charge of breach of security and duty owed by Plaintiff had been added for the first time.
On September 23, 2010, Plaintiff was served with a letter notifying him that his employment with the University had been terminated, effective that day. The letter was signed by Thompson and Stone and stated that the University found that ...