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Beverly v. Abbott Laboratories

United States District Court, N.D. Illinois, Eastern Division

July 10, 2019

ABBOTT LABORATORIES, an Illinois corporation, and VICTORIA LUO, Defendants.



         Plaintiff Henry Beverly, an African American military veteran born in 1965, gradually saw his responsibilities at Defendant Abbott Laboratories (“Abbott”) reduced, leading him to request an unprotected leave of absence. After Beverly requested a third extension of that leave, Abbott terminated his employment. Beverly then filed suit against Abbott and his direct supervisor, Victoria Luo. In his second amended complaint, he brings claims against Abbott for interference with and retaliation for the exercise of his rights under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. (Counts I and II); race discrimination in violation of the Illinois Human Rights Act (“IHRA”), 775 Ill. Comp. Stat. 5/1-101 et seq., and 42 U.S.C. § 1981 (Counts III and VI); age discrimination in violation of the IHRA (count IV); retaliation in violation of the IHRA and § 1981 (Counts V and VII); discrimination on the basis of past military service in violation of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4301 et seq. (Count IX); and breach of the covenant of good faith and fair dealing (Count VIII). Beverly also claims that Abbott and Luo committed defamation (Count X) and that Luo tortiously interfered with his continued employment at Abbott (Count XI). Abbott and Luo have moved for summary judgment on all of Beverly's claims, and Beverly has moved for summary judgment solely on the tortious interference claim.

         The Court grants in part and denies in part Abbott and Luo's motion and denies Beverly's motion. Considering his discrimination claims together, Beverly has not established a genuine issue of fact with respect to his termination, but he may proceed on whether his race, age, or military service caused Abbott to materially reduce his responsibilities prior to his termination. Similarly, Beverly's retaliation claims with respect to his termination fail, but those connected to the reduction in responsibilities may proceed. Because a question of fact surrounds the timing of Abbott's termination decision and Beverly's stated intention to take FMLA leave, his FMLA claims must proceed to trial. Beverly's defamation claim also survives summary judgment because a question of fact exists as to whether Luo acted with actual malice in reporting that Beverly had a history of lying after his termination. But because he has not shown a dispute to overcome Luo's qualified privilege for actions leading up to his termination or that he had a reasonable expectancy of continued employment, the Court grants summary judgment for Luo on the tortious interference claim. Finally, Beverly's breach of contract claim fails because Abbott's actions in terminating his contract accorded with the parties' reasonable expectations.


         I. Beverly's Background and Position at Abbott

         Beverly served in the United States Army from 1985 to 1997. He worked for Abbott from May to September 2002. Abbott rehired Beverly in February 2007 to a senior financial analyst position. In 2008, Beverly laterally transferred to a demand analyst position for Abbott Nutrition International (“ANI”). Kevin Bowler supervised Beverly from 2008 to mid-2012. In late 2012, Luo, a Chinese American born in 1970, and the Senior Finance Manager Demand and Sales Operations and Planning (“SO&P”) for ANI, became Beverly's direct supervisor. Luo's group aided ANI affiliates with monthly demand forecasts, published these reports, coordinated monthly SO&P meetings, and provided training to affiliates. When Luo became the manager, Beverly took on some of Bowler's prior duties and handled any duties for which Luo did not have the certification or training. Jeff Young, a commercial controller for Abbott, instructed Beverly to train Luo. Pleased with Beverly's work, Young issued Beverly a monetary Abbott Excellence Award. Luo also enlarged Beverly's role to include more contact with demand managers, with Beverly spending about three to eight hours a week training these managers. In 2012 and 2013, Luo tasked Beverly with preparing templates and programs to allow country representatives to report on their new sales. Beverly also created new financial models, KPI reports, product initiative reports, and a pulse report.

         II. Changes in Beverly's Role between 2013 and 2015

          In 2013, Abbott split into two companies, Abbott and AbbVie. Abbott eliminated the Global Pharmaceuticals Operations (“GPO”) team, which handled systems work for Luo's group. Luo's group hired Hamid Akhtar, a former GPO employee of Pakistani national origin born in 1975, to fill an IT/systems role. About four to six months after Akhtar began working in Luo's department, Luo shifted some of Beverly's duties, including uploading annual forecasts and new sales transactions, and manipulating data and spreadsheets, to Akhtar. Beverly trained Akhtar on how to perform these duties. In 2014, Akhtar also became responsible for training individuals on systems. Beverly retained responsibility for reporting-related training, and Luo for process-related training. Later in 2014, Luo reduced Beverly's role and his interaction with affiliates, placing him on a new SAP project.

         By 2015, Beverly no longer prepared pulse reports, forecast roll-ups, key performance indicator reports, product index reports, or ad hoc reports, all reports he had prepared in the past. He testified that all that remained for him in 2015 was to prepare part of a PowerPoint presentation for a meeting and to answer ad hoc requests from affiliates. This amounted to about one to two hours of work per week, including forty-five minutes to an hour each month on the PowerPoint presentation and about an hour per week on requests from Abbott affiliates. Beverly also only worked from home on the phone approximately once a month.

         Prior to 2013, Beverly regularly attended system and supply chain meetings. This changed to sporadic attendance in 2013, with Beverly excluded from meetings regarding the deployment of the new enterprise resource planning system and supply chain meetings with the ANI finance team, which Luo, Akhtar, and Young attended. Beverly no longer had the opportunity to attend desired training sessions, although, in 2014, Luo approved Beverly to attend the annual AvaMed conference, which dealt with healthcare information systems. Beverly also traveled to receive training in Mexico. Over the same period of time, Akhtar attended an SAP advanced planner and optimizer training, as well as a Demand & Supply Management Course in Basel, Switzerland. Akhtar took on overseas training responsibilities, with Beverly stepping in only when Akhtar could not make the trip. Abbott instituted a travel freeze in 2014, meaning that all overseas travel for meetings and trainings ceased.

         Beverly testified that, in early 2015, he had a cordial working relationship with Luo. Beverly recalled having lunch with Luo once after she became his supervisor. He also testified that he only met with Luo and Akhtar approximately once a quarter. At some point in 2014 or 2015, Beverly recalls helping Luo's daughter with a school project on military veterans at Luo's request. On another occasion, Luo asked Beverly to drive her family friends from downtown Chicago to Abbott's office. Bruce Tsai, who started at Abbott in August 2015 in Beverly's former role, testified he had lunch with Luo every few weeks and with both Luo and Akhtar about five or six times.

         Beverly's base rate of pay in April 2012 was $94, 820.74. This increased to $97, 902.41 in April 2013 and $100, 839.48 in March 2014. Abbott never disciplined Beverly or placed him on a performance improvement plan, with Beverly instead receiving various letters of recognition and awards during his employment. Luo was impressed with Beverly, even before she became his manager. She knew of positive feedback Beverly had received from Steve Brodner, a manager on the Business Excellence team, who told Luo that Beverly was the “best tester we have.” Doc. 68 ¶ 9. In his 2012, 2013, and 2014 performance reviews, Luo gave Beverly an achieved expectations rating. Luo testified that she did not include in his performance reviews that he sometimes failed to provide deliverables as promised because she did not want to negatively impact his chances for other opportunities at Abbott.

         III. Beverly's Leave of Absence and Termination

         Abbott has a personal leave of absence (“PLOA”) policy that “provide[s] Abbott with a means to allow employees in good standing to be reinstated with past service credit . . . if they need to suspend active employment status.” Doc. 62 ¶ 10. Employees must provide requests for a PLOA in writing to Abbott's leave vendor and include an estimate of the duration and purpose of the leave. Abbott retains the discretion to grant or deny the leave based on operational needs and the employee's performance. A PLOA may last between four continuous work weeks and six months, with extensions allowed only for a total of six months of leave. Abbott does not guarantee reinstatement from a PLOA. Instead, the PLOA policy states that, “[i]f an employee's position is no longer available and if an employee is qualified and selected for an open position, the employee will be reinstated and the employment date (start date) is adjusted if the PLOA exceeded three (3) calendar months.” Id. ¶ 70. “If an employee obtains full-time employment while on a PLOA, the leave will be canceled and termination will be automatic.” Id. ¶ 14. The PLOA policy does not limit or prohibit Abbott's ability to terminate the employment of an at-will employee. Abbott's termination policy also provides that nothing in that policy limits Abbott's ability to terminate an at-will employee at any time without restriction. Beverly understood the contours of the PLOA policy.

         In February 2015, Beverly applied for a job with the Clerk of the Circuit Court of Cook County. He began his orientation and probationary period with the Clerk's Office on March 9, 2015, at a salary of $100, 183. His position was a full-time position, although he testified he initially only worked part-time. Beverly remains employed by the Clerk's Office. Beverly never told Abbott about his employment with the Clerk's Office while employed by Abbott. At the time he applied, Beverly saw the position as one that could provide him with employment security if Abbott terminated his employment.

         After obtaining the Clerk's Office position, on March 16, 2015, Beverly requested a PLOA from Abbott to begin on March 20, with an anticipated return date of May 25. In connection with requesting the PLOA, he told Luo that he believed his role had essentially been eliminated, leaving him without any tasks or duties. Luo granted Beverly's request on March 20, but she told Beverly that, because of the duration of his leave, Abbott may have to search for a backup to cover his responsibilities during his absence. At the time, Luo's group was preparing for a system switch in August 2015. At the beginning of Beverly's leave, Luo and Akhtar covered Beverly's job responsibilities. Beverly also periodically checked in, responding to work emails in March, April, and June 2015. He communicated with Luo every few weeks, met with her in person when he went into the office, and asked Luo to keep him updated on the group's projects.

         On May 18, after a discussion with Luo in which Luo represented that everything was going well and Beverly's work was covered, Beverly emailed Luo and Maggie Stinson, an integrated claims examiner with Matrix Absence Management, Abbott's third-party benefits administrator, to request an extension of his PLOA through June 29. Luo approved the extension the next day. At the same time, Luo, with the aid of Abbott's human resources department, created a requisition for Beverly's position and posted it on May 22. Luo never informed Beverly she had posted his job internally, although Beverly testified he reviewed open positions at Abbott while on leave.

         On June 24, Beverly sought a second extension of his PLOA, this time until July 31, meaning he would return to work on August 3. He indicated that a family member died in a boating accident off the Panama coast, requiring him to travel to Panama.[2] Luo approved Beverly's request for another extension of his leave on June 29. Meanwhile, on July 13, Abbott offered Beverly's demand analyst position to Bruce Tsai, a Taiwanese American born in 1969 who had previously worked at AbbVie. Tsai accepted the position either that day or on July 21, and he signed his employment agreement with Abbott on July 27. Luo introduced Tsai as Beverly's replacement in an email to ANI employees on August 4. Luo did not know Tsai before hiring him and did not contact any of his references. Tsai's 2014 performance assessment at AbbVie reflected an overall rating of 2 out of 5, meaning he met some but not all expectations for results, and he also received a 2 rating for inconsistent demonstration of certain leadership attributes. Tsai's resume lists a number of programming skills, including: SAP F/I, SAP SD, SQL Server, Access, Excel WebFocus, WinShuttle, SharePoint, Cognos Reporting Portal, Business Object, Hyperion Financial Management/Essbase, SAS, and Oracle SQL Plus. But it also reflected that he had not worked with BOBJ, one of the computer programs used at Abbott, for five years, and Luo did not know if Tsai had worked with GSAT before his hire.

         On the heels of Tsai's hiring, on July 26, Beverly sought a third extension of his PLOA through August 22. Beverly testified that, on or around July 27, he also told Luo of his intention to return to work to take FMLA leave. When Luo received the PLOA extension request, she contacted human resources and spoke with Kevin Mason and Dave McLoughlin about terminating Beverly's employment instead of granting the extension request. Luo explained to human resources that she was in the process of filling the position to address the work that had piled up due to Beverly's absence and the upcoming launch of a new system. Luo did not consult with Abbott's employee relations group.[3] Mason, the director of business human resources who is Caucasian and over the age of forty, supported the decision to terminate, which ultimately rested with Luo. Mason understood the facts to suggest that Beverly had no interest in returning to Abbott. On July 29, Mason and Luo called Beverly and informed him that they were denying his request for a PLOA extension, which meant that his employment terminated effective July 31.[4] Luo communicated the leave extension denial to Matrix, the leave vendor, after she notified Beverly. Beverly asked Mason and Luo how he should return the Abbott property he had, including a laptop, tool bag, business cards, an ID, and a printer. Mason indicated he could return it when he had a chance, understanding that Beverly was not in town. Beverly retains that property to this day, claiming that he never received any other response to how to return the property.

         After informing Beverly of his termination, Luo called Global Security, the Abbott department that investigates safety and security concerns raised by Abbott and its employees, to discuss the deactivation of Beverly's work badge and Beverly's access to the Abbott worksite. Global Security prepared a report of this conversation, which other Abbott employees, including those in the employee relations and global security departments and the Office of Ethics Compliance, could access. Kay Umscheid, a Global Security employee, testified that Luo told Global Security that Beverly had a history of lying and could be a security threat because of his military background. Luo did not identify any specific worrisome statements that Beverly had made, but she stated she did not want personal contact with him and did not feel comfortable. Umscheid deactivated Beverly's badge and provided Luo with safety and security recommendations. But Luo did not take any of these recommended precautions, instead testifying that she did not know what she could do for protection. Luo denies stating that Beverly could be a threat because of his military background. She also denies that Beverly lied to her but testified that she formed the impression that he did not tell the truth based on her interactions with him. Luo did not record any instances of lying in Beverly's performance reviews.

         IV. Beverly's 2012 Lawsuit against Abbott

          Beverly and his wife, Martina, who previously worked for Abbott, filed a federal lawsuit against Abbott in April 2012. The court granted summary judgment for Abbott with respect to Beverly's discrimination and retaliation claims in March 2014, but the court also ordered that Beverly participate in settlement discussions alongside his wife. Luo did not know of the resolution of Beverly's lawsuit at any time during his employment with Abbott. Mason could not recall if he knew of Beverly's prior lawsuit at any time leading up to Beverly's termination. But Beverly recalls that, in March 2014, on the day the court dismissed his claims against Abbott in the 2012 lawsuit, Young walked by Beverly's desk and “dance[d] in an upbeat manner, smiling and moving around in the space next to [Beverly's] desk.” Doc. 77-1 ¶ 5. At that time, Young was Luo's direct supervisor, but he had not worked with Beverly since April 2013.

         Beverly recalls that, in 2014 or 2015, Luo asked him to help his daughter with a school project she was doing on military veterans and, on one occasion, to pick her family friends up from downtown Chicago and drive them to Abbott's offices.


         Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. To determine whether a genuine issue of fact exists, the Court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed.R.Civ.P. 56 & advisory committee's notes. The party seeking summary judgment bears the initial burden of proving that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In response, the non-moving party cannot rest on mere pleadings alone but must use the evidentiary tools listed above to identify specific material facts that demonstrate a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the Court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The same standard applies when considering cross-motions for summary judgment. Int'l Bhd. of ...

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