## Illinois Official Reports

Appellate Court

Harrison v. Deere & Co. , 201 4 IL App ( 3d ) 130497

Appellate Court Caption ANDRE HARRISON, Plaintiff

- Ap pellant, v. DEERE AND
COMPANY, a Corporation, Defendant

- Appellee.

District & No. Third District

Docket No. 3

- 13

- 0497

Filed August 8, 2014

Held

( Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of

the reader. ) Plaintiff’s claims based on the termination of his employment by defendant for alleged sexual misconduct with subordinate employees

were p roperly dismissed on the ground that the claims were barred by

the res judicata effect of the decisions in two earlier lawsuits he brought involving the same cla ims, and his request for relief under the Illinois Personnel Record Review Act for defendant’s alleged failure to send him a copy of the investigative report supporting his discharge within the required 7 days was properly denied due to the lack of any leg al consequences.

Decision Under

Review Appeal from the Circuit Court of Rock Island County, No. 10

- L

- 75; the Hon. Lori R. Lefstein, Judge, presiding.

Judgment Affirmed.- 2

-

Counsel on
Appeal Stephen T. Fieweger and Nicholas Cibula (argued), of Katz, Huntoon & Fieweger, P.C., of Moline, for appellant.

Nina G. Stillman and Christopher J. Boran (argued), both of Morgan, Lewis & Bockius, LLP, of Chicago, for appellee.

Panel JUSTICE McDADE delivered the judgment of the court, with opinion.

Justices Carter and Schmidt concurred in the judgment and opinion.

OPINION

¶ 1 The plaintiff, Andre Harrison, filed three separate lawsuits, including this one, in response

to the termination of his employment by the defendant, Deere & Company.
¶ 2 Harrison ’ s firs t litigated case was filed in Illinois state court against several of Deere ’ s

managers involved in the investigation of Harrison ’ s alleged sexual misconduct with subordinate employees and the decision to terminate the plaintiff ’ s employment. After two

earl ier amendments to the complaint, the third amended complaint alleged that Deere ’ s managers had defamed Harrison and intentionally interfered with his employment. Harrison v. Addington , 2011 IL App (3d) 100810 (hereinafter Addington )

. The trial court ruled in favor of

Deere ’ s managers and the judgment was affirmed on appeal. Id

. The appellate decision included a thorough recitation of the facts relating to all of the issues raised by Harrison as well as several entries noting that the managers ’ actions during the investigation were in accord with their job duties. Id

. ¶ 75. The court further stated that the appeal was totally devoid of

merit. Harrison ’ s employment was terminated because his interactions with the subordinate employees violated co mpany policy. Id

. His actions “ created a risk of workplace violence as well as a risk of financial liability for [the defendant]. ” Id

. ¶ 8 3

. His claims of racial discrimination or retaliation were found to be unsupported. Id

. ¶ 79

. There was no supreme

c ou rt review of that decision.
¶ 3 Harrison ’ s second case alleged an intentional racial discrimination violation under 42

U.S.C. § 1981 in federal court. The district court concluded and the Seventh Circuit affirmed that the case was barred by res judicata. Harr ison v. Deere & Co. , 533 F. App ’ x 644 (7th Cir. 2013) (hereinafter Deere )

. Addington had already determined that the issue of race discrimination was without merit against Deere ’ s managers and those managers were shown to be in privity with Deere. Id . No w rit of certiorari has been granted in that case.
¶ 4 In this, the third case, Harrison claimed violations by Deere of the Illinois Personnel

Record Review Act (the Act ) (820 ILCS 40/2 , 9 (West 2008)) when Deere assembled an investigative record of his associa tions, communications, and nonemployment activities prohibited by section 9 and failed to provide him a copy of the investigative report supporting his discharge within the seven days required by section 2 for production. He alleges that these

activities w ere racially motivated, constituted an invasion of his privacy and result ed in his wrongful termination.- 3

- ¶ 5 Deere prevailed in the trial court and Harrison appeals the following rulings of the trial

court : ( 1) the grant ing of Deere ’ s motion to reconsider and the determination that defendant ’ s conduct did not rise to the level of bad faith and willfulness within the meaning of section 2 of

the Act (820 ILCS 40/2 (West 2008)); ( 2) the finding that Harrison ’ s claim pursuant to section

9 of the Act (820 ILCS 40/9 (West 2008)) was barred under the doctrine of res judicata

, as well as prior grant s of Deere ’ s motions to dismiss the plaintiff ’ s invasion of privacy and wrongful

termination claims ; and (3 ) the denial of Harrison ’ s post trial motion for lea ve to file a third amended complaint seeking to a dd a race discrimination claim.

¶ 6 S UMMARY OF RELEVANT FACTS
¶ 7 On or around August 30, 2009, Deere initiated an investigation concerning allegations that

Harrison had engaged in sexual misconduct with subordinate employees. Despite being advised that the interaction was consensual, Deere continued its investigation of the nature and

extent of Harrison ’ s relationships with the employees. Deere terminated Harrison ’ s employment on September 3, 2009, citing violations of its policy prohibiting managers from engaging in sexual relationships with subordinate employees.
¶ 8 On September 10, 2009, Harrison sent an email to Deere formally requesting a copy of his

personnel file. Deere ’ s September 11 response advised that Sherri Martin (Martin ), its human

resource d irector, would be the contact person for th e matter. Also on September 11 , Martin

received the investigative r eport ( report ) setting out the facts disclosed through the investigation. This report was used i n determining that Harrison should be discharged.
¶ 9 On September 14, Martin mailed the plaintiff do cuments contained in his personne l file,

but the report was not included. When Harrison received the documents on September 17

, he

notified Martin via email o f the missing information. Martin responded with an email stating she had given him everything that was in his personnel file.
¶ 10 On September 24, the plaintiff emailed Martin, for the second time, requesting a copy of

his personnel file including the inform ation related to his discharge and stating that such

information was need ed for his adequate legal representation. Martin ad vised Harrison on that same day that further communication should then be by counsel and provided him with

Deere ’ s attorney ’ s email address. On September 28, Harrison emailed Martin that his attorney

had not been able to reach Dee re’s attorney. He further specified that his benefit information needed for his settlement proposition could be sent to Deere ’ s attorney

, who could then share

the information with his attorney.
¶ 11 On October 5, Deere re sent the file , this time including the report

, to Harrison ’ s attorney. 1

Harrison filed his complaint seeking enforcement of section 2 of the Act (820 ILCS 40/2 (West 2008)) with the Department of L abor on October 24. His original civil complaint seeking

enforcement of section 2 of the Act (820 ILCS 40/2 (West 200 8)) was filed on June 16, 2010.
¶ 12 During trial, Martin testified that s he was familiar with Deere ’ s “ Human Resource Policy

and Guidance Stat ement 203 ,” which required compliance with Illinois law in responding to requests pursuant to the Act

. She, however, had never read the Act and she had never asked for legal assistance in determining her compliance with the Act

.

1 Harrison later complained about this delivery, asserting that he had not hired counsel to assist him in securing the investigation report.- 4

- ¶ 13 Martin acknowledged that d ocuments concerning disciplinary actions can be human

resource documents. However, she stated that she had never seen investigatory documents in

human resource files and stated that such reports are not typically part of personnel files. She

did not believ e that the report should be part of Harrison ’ s personnel file because i t did not

discuss any disciplinary action and she did not consider the report to be disciplinary in nature. She conceded that there was no written procedure for personnel files establis hed for Harrison ’ s unit of employment as recommended by Deere ’ s human resource policy.
¶ 14 Harrison testified at trial that in his various managerial capacities he had seen reports in the

files of several of his former employees. However, he had never persona lly placed such a report in a personnel file.

¶ 15 ANALYSIS
¶ 16 I. Propriety o f Granting Motion to Reconsider
¶ 17 On appeal, Harrison first argues that the court erred in granting Deere ’ s motion to

reconsider and in finding that Deere did not commit a “ willful and knowing violation ” of

section 2 of the Act (820 ILCS 40/ 1 2 (d)(2) (West 2008)). Deere concedes its actions were in

violation of section 2 of the Act , but again asserts that the actions were not willful ly and knowing ly in violation of section 12( d)(2) (820 ILCS 40/2 , 12 (d)(2) (West 2008))

. ¶ 18 The standard of review of a grant of a motion to reconsider is abuse of discretion. Robidoux

v. Oliphant , 201 Ill. 2d 324, 347 (2002). However, a trial court ’ s order may be affirmed for any

valid reason support ed by the record, regardless of the re asoning used by the trial court

. Bank of America , N.A. v. Luca , 2013 IL App (3d) 120601 . To the extent this issue also presents a question of statutory interpretation

, it is subject to de novo review

. County of Du Page v. Illinois Labor Relations Board

, 231 Ill. 2d 593, 603 (2008). Our primary objective in interpreting a statute is to ascertain and give effect to the intent of the legislature. People v.

Zimmerman , 239 Ill. 2d 491, 497 (2010) . We not only look to the pla in and ordinary meaning of the words in the statute but interpret those words in light of other relevant provisions in the

statute

. Id.
¶ 19 In general, the administration of section 2 and enforcement by section 12 are designed to

facilitate an employee’s pers onnel file review request. Section 2 of the Act requires : “ Every employer shall, upon an employee ’ s request *** permit the employee to inspect any personnel

document s which are, have been or are intended to be used in determining that employee ’ s qualificat ions for *** discharge or other disciplinary action ***.” 820 ILCS 40/2 (West 2002). This section also requires that the “ employer shall provide the employee with the inspection opportunity within 7 working days after the employee makes the request .” Id

. ¶ 20 Here, Deere concedes that its agent, Martin, did not provide Harrison with all of the

information in his personnel file, including the report, within the seven

- day time frame required of the statute. However, Deere provided these documents to Harrison on O ctober 5, 2010, well before Harrison filed his Department of Labor complaint on October 24. Though Harrison asserts in his Department of Labor complaint and subsequent administrative hearing that the documents were improperly sent to his attorney and not d irectly to him, he failed to acknowledge the effective acquiescence in his email on September 28 to “counsel only” communication. That email further stipulated that sensitive documents, like his pension plan,- 5

-

could be transferred to him through the attorne ys. It thus appears that Deere complied with the request albeit not within the seven working days.
¶ 21 Harrison contends that because Deere did not comply with the time frame required by

section 2 (820 ILCS 40/2 (West 2008)), Deere should suffer the penalty imposed by the statute. Section 12(d)(2) of the Act provides that “ the court shall award an employee prevailing in an action pursuant to this Act the following damages: *** For a willful and knowing violation of this Act, $200 plus costs, reasonable attorney ’ s fees and actual damages. ” 820 ILCS 40/12(d)(2) (West 2008 ). We fail to see how this section is a ctually applicable to the claims

Harrison asserts.
¶ 22 In the factual context of this case, this issue is without legal consequence. The only

significance of whether Deere’s violation was willful is the availability of attorney fees, if

reasonable. Review of section 12 of the Act in its entirety discloses procedures available for an employee whose employer has persisted in its failure to comply with the requirements of other parts of the Act. Specif

ically, section 12(c) provides: “(c) If an employer violates this Act, an employee may commence an action in the circuit court to enforce the provisions of this Act, including actions to compel compliance, where efforts to resolve the employee ’ s complaint concerning such violation by conference, conciliation or pers uasion pursuant to subsection (b) have failed and the Department has not commenced an action in circuit court to redress such violation. The circuit court for the county in which the complainant resides, in which the complainant is employed, or in which th e personnel record is maintained shall have jurisdiction in such actions. ” 820 ILCS 40/12( c) (West 2008).
¶ 23 Immediately following this section is what Harrison refers to as the penalty that Deere

should be made to suffer. He overlooks, however, that the sta tute imposes the penalty for the employer’s “[f] ailure to comply with an order of the court .” 820 ILCS 40/12(d) (West 2008).
¶ 24 Harrison is not eligible for attorney fees for two reasons: first, because the court did not

compel, has not compelled, and cannot compel Deere to comply with the statutory requirements to produce the report for inspection because Deere had already produced the

documents prior to Harrison’s filing of the complaint with the Department of Labor and the complaint with this case. Second, Deere complied without any need for Harrison to hire

counsel. Supra n.1. Thus, nothing related to the violation would make his attorney fees reasonable or invoke the application of this section of the statute.
¶ 25 Because of Deere’s conceded technical violat ion of the statute’s time frame requirement,

section 12(e) of the Act is the only applicable portion of the administration and enforcement section of the Act. That section states that “[a] ny employer or his agent who violates the provisions of this Act is guilty of a petty offense. ” 820 ILCS 40/12 (e) (West 2008). Deere did, in fact, violate a provision of this Act by providing Harrison with all of his personnel file documents in 25 working days rather than the statutorily required 7 days. Thus, Harrison’s

o nly relief on this count of his complaint is the acknowledgement that Deere committed a petty

offense.

¶ 26 II. General Applicability of Res Judicata
¶ 27 Next Harrison argues that the trial court erred in granting ( 1) Deere ’ s motion for summary

judgment on his claims based on section 9 of the Act and ( 2) Deere ’ s motion to dismiss his- 6

-

wrongful termination and invasion of privacy claims. He further argues that the trial court erred in denying his motion for leave to file a thir d amended complaint. Deere counters that all of these claims are barred by res judicata

. ¶ 28 When reviewing a case decided on summary judgment or a motion to dismiss, our standard

of review is de novo

. See Pielet v. Pielet , 2012 IL 112064, ¶ 30. De novo consideration affords this court the opportunity to analyze the facts and issues independently and without deference

to the trial court. Khan v. BDO Seidman, LLP , 408 Ill. App. 3d 564, 578 (2011).
¶ 29 In the instant case, the trial court granted Deere ’ s summ ary judgment motion

, finding

Harrison ’ s section 9 claim barred by res judicata

. Based on the following analysis, we agree with that finding and further find that Harrison ’ s invasion of privacy and wrongful termination

claims are also amendable to dismissal on res judicata grounds.
¶ 30 Res judicata applies when: “ (1) there was a final judgment on the merits rendered by a

court of competent jurisdiction, (2) there is an identity of cause of action, and (3) there is an identity of parties or their privies. ” River Park, Inc. v. City of Highland Park

, 184 Ill. 2d 290, 302 (1998)

. “ ‘ [T]he doctrine of res judicata extends not only to every matter that was actually determined in the prior suit but to every other matter that might have been raised and

determined in it. ’ ” Deere

, 533 F. App ’x at 648 ( quoting Torcasso v. Standard Outdoor Sales,

Inc. , 157 Ill. 2d 484, 490 (1993))

. Each res judicata factor will be addressed in turn.

¶ 31 A. Final Judgment
¶ 32 The Addington court held that the information acquired by Deere ’ s managers concerning

the plaintiff ’ s relationships with subordinate employees was the reason for the plaintiff ’ s termination under the defe ndant’s company policy. Addington , 2011 IL App (3d) 100810

, ¶¶ 64, 73

. The federal court in Deere held that Harrison ’ s issue of race discrimination was barred by res judicata because not only were Deere ’ s managers (defendants in Addington ) in privity with Deere, the cause of action had already been addressed in Addington using the same set of operative facts. Deere

, 533 F . App ’ x at 649

. No s upreme c ourt review in either c ase has been had or is pending.
¶ 33 Therefore, there are two “ final judgments on the merits ” that have been issued by “ courts

of competent jurisdiction ” satisfying the first element of res judicata

.

¶ 34 B. Identity of Parties or T heir Privies
¶ 35 We agree with the Seventh Circuit ’ s reasoning as to why the defendants in Addington and

Deere meet the “ identity of parties or their privies ” element for res judicata

. ¶ 36 The defendants in Addington were eight managers w orking for Deere, while the defendant

in this case is Deere itself. The eight managers operated within the scope of their employment when they investigated Harrison ’ s sexual misconduct and decided to terminate his employment. See Addington

, 2011 I L App (3d ) 100810 , ¶¶ 43

- 81

. Because the managers were acting as agents for Deere, the Illinois A ppellate C ourt observed that Deere “ would have been liable for all of the actions taken by its employees ” when they terminated Harrison ’ s employment. Id. ¶ 51

. Addition ally, the managers ’ interests were aligned with Deere ’ s interests because Harrison ’ s conduct “ created a risk of workplace violence as well as a risk of financial liability for Deere. ” Id. ¶ 8 3. The eight managers and Deere shared an interest in preventing such violence and liability. Therefore, because the managers were acting as Deere ’ s- 7

-

agents and they all had closely aligned interests, Addington and this case meet the “ identity of parties or their privies ” element for res judicata. (Internal quotation mar ks omitted.) Deere

, 533 F. App ’ x at 649

. ¶ 37 DeFlon v. Sawyers

, 2006

- NMSC

- 025

, 139 N.M. 637

, 137 P.3d 577 , relied on by Harrison,

actually works against him. In that case, the court found that the named managers were not in privity with their company in its p revious litigation with DeFlon because in their case they were being charged with acting outside of the scope of their employment. Id. ¶ 10. However, in the instant case, the situation is reversed. In Addington , the defendant ’ s managers were found

to be ac ting within the scope of their employment and thus the defendant would have been

liable for their actions. Addington , 2011 IL App (3d) 100810 , ¶¶ 64, 73

. Because of that closely alig ned interest, there is privity.
¶ 38 Harrison argues that the identified agent in his section 9 cause of action, Martin, is not one

of the parties identified in Addington and thus privity is severed. However, Harrison apparently failed to actually look at his complaint in Addington . Martin is , in fact, a named party in that

case

. Addington

, 2011 IL App (3d) 100810

. ¶ 39 The Seventh Circuit has already outlined why the parties in Addington are in privity with

Deere

, thus satisfying the second element of res judicata

.

¶ 40 C. Identity of Cause of Ac tion
¶ 41 Though a bit out of the outlined order, the last factor we consider is “identity of cause of

action.” We find that the facts used in Addington and later in Deere constitute the same “ single group of operative facts ” that Harrison is once again using to substantiate his claims. Addington , 2011 I L App (3d) 100810; Deere

, 533 F. App ’ x at 649.
¶ 42 Illinois ’s “ transactional test ” for identity of cause of action for res judicata provides that

“ the assertion of different kinds or theories of relief still constitutes a single cause of action if a single group of operative facts give r ise to the assertion of relief.” Baird & Warner, Inc. v.
Addison Industrial Park, Inc

., 70 Ill. App. 3d 59, 64 (1979).
¶ 43 Harrison has essentially conceded that the facts he used in Addington are the same facts he

is using to establish his rights to relief on his current causes of action. In Addington , facts provided by Harrison and Deere concerning the investigation and termination of Harrison ’ s employment were used to determine if the named employees defamed or in tentionally

interfered with Harrison ’ s employment. Addington

, 2011 I L App (3d) 100810

. Such facts included the premier reason for gathering information about Harrison ’ s personal relationships by Deere ’ s employees, how th e information was gathered, what information was gathered, and the management discussion and decisions supported by that information. Id

. ¶¶ 64, 73

- 74

. The actions used to gather and the decisions based on these facts were determined to have been

within th e scope of the r esponsibilities of Deere ’ s employees and not for any discriminatory or retaliatory purposes. Id. ¶¶ 73, 75. The factual information was properly acquired for the plaintiff ’ s termination. Id. ¶ 74.

¶ 44 1. Section 9 of the Act
¶ 45 Harrison claims that Deere violated section 9 of the Act by “ gather[ing] or keep[ing] a

record of [his] association s[,] *** communications [and] non employment activities.” 820 ILCS 40/9 (West 20 08). He asserts that he was unable to bring this issue in Addi ngton because- 8

-

( 1) the court refused to consider his section 9 claim, and ( 2) he had not received his “right to

sue” letter from the Department of Labor prior to the trial court ’ s denial of his motion to extend the time for amendment of pleadings. He effect ively concedes that the facts he uses here to argue this issue are the same ones relied on in Addington , but he claims that privity is an issue.

Harrison ’ s privity argument has already been addressed. This court has already found in Addington that Deere wo uld have been liable for the actions of its managers , including Martin,

under the statute if a violation had been found. Addington , 2011 IL App (3d) 100810, ¶ 51.
¶ 46 Nonetheless, the Addington decision was not the reason why Harrison could not assert the

all eged violation of section 9 of the Act before the court. Res judicata applies not only to issues that were previously litigated but also to those that could have been litigated but were not.

Deere , 533 F . App ’x at 648. Harrison had multiple options for bri nging this specific issue

before the court during the Addington litigation.
¶ 47 The Addington court declined to address Harrison ’ s section 9 claim in his appeal because it

was not properly before the court. Addington , 2011 IL App (3d) 100810, ¶ 73. Harrison h ad waived the issue by failing to argue it in his opening brief. Id

. Nonetheless, res judicata still applies.
¶ 48 With regard to his “right to sue” letter, Harrison could have asked the Addington trial court

to stay proceedings until he received his “right to sue” letter. The plaintiff petitioned and was granted the right to amend his complaint several times. It is not unfair to presume neither Harrison nor the trial court would have had a problem with a stay of proceedings pending receipt of the “right to sue ” letter. Yet, no stay was requested

. ¶ 49 While Harrison does point to the Addington court ’ s denial of his motion for leave to amend

the case m anag ement o rder on March 26, 2010, he fails to indicate why he needed such an

amendment. He acknowledges that at the time he made the motion, he was not aware that the Department of Labor had also issued its “right to sue” letter on that same day. Thus, this would

not have been a consideration in the court ’ s denial of the leave to a mend the case management

order.
¶ 50 Addit ionally, Harrison could have motioned for leave to file a supplemental amendment or

amendments generally. Given the anticipated “right to sue” letter, such amendment would have been in the interest of justice. Harrison, however, chose to attempt to file ye t another lawsuit based on the same operative facts in lieu of that or any of the other aforementioned options.

¶ 51 2. Invasion of Privacy
¶ 52 The facts Harrison points to in his invasion of privacy argument are the same operative

facts that the Addington co urt found to be appropriate actions of Deere’s managers. Addington

, 2011 I L App (3d) 100810, ¶ 74. Harrison argues that questioning other employees directly about his private life was worse than the actions of the defendant in Johnson v. K mart Corp.

, 311 Ill. App. 3d 573 (2000) (hiring of private detectives to pose as employees to gain information about the private lives of employees). However, these are the same facts and essentially the same argument Harrison used in c ounts X, XI, and XII in Addington

. T here the

court noted that “[O] nce the company was aware of appellant ’ s involvement in this other

pot entially inappropriate employee related relationship, additional investigation was appropriate. ” Addington , 2011 IL App (3d) 100810, ¶ 74.- 9

- ¶ 53 3. Wrongful Termination
¶ 54 Finally, Harrison ’ s wrongful termination argument is couched in the trial court ’ s finding

that he did not sufficiently argue the employer ’ s retaliatory conduct. However, a central finding in Addington is that the actions of Deere ’ s managers an d Harrison ’ s subsequent firing were not based on a retaliatory motive. Addington

, 2011 IL App (3d) 100810, ¶¶ 43, 58, 64, 76,

81. The nonemployment activity that Harrison argues should not have been used for his termination is his personal relationships, w hich the Addington court found to be in violation of

Deere ’ s company policy and thus the grounds for Harrison ’ s employment termination. Id. ¶ 74.
¶ 55 The facts used in Addington are the same operative facts the plaintiff is using in the present

claims. The pu rpose of res judicata is to prohibit such “ duplicative ” litigation. Hudson v. City of Chicago , 228 Ill. 2d 462, 482 (2008). Thus Harrison ’ s claims of a violation of section 9 of

the Act , invasion of privacy, and wrongful termination are barred by res judicata

.

¶ 56 III. Denial of Leave to File Another Amended Complaint
¶ 57 We also affirm the trial court ’ s finding that Harrison ’ s motion for leave to file an amended

complaint concerning race discrimination is barred by res judicata

. The standard of review f or cases involving denial of a motion for leave to file an amended complaint is abuse of discretion by the trial court, which is found only where no reasonable person would take the view adopted by the trial court. Keefe

- Shea Joint Venture v. City of Evans ton , 364 Ill. App. 3d 48, 61 (2005). We point to the Seventh Circuit ’ s analysis in Deere finding “ an identity of cause of action. ” (Internal quotation marks omitted.) Deere

, 533 F. App ’ x at 648. The same race discrimination claim attempted here was resolve d in Addington and barred from relitigation in Deere

. Id

. We reject Harrison’s attempt to relitigate this issue and affirm the trial court ’ s decision tha t it cannot be litigated again.

¶ 58 CONCLUSION
¶ 59 We affirm the trial court ’ s denial of Harrison’s request for relief under section 1 2 of the Act

because the issue is without legal consequence and further hold that Harrison ’ s other claims are all barred by res judicata

.

¶ 60 Affirmed

.