                                          2014 IL App (3d) 130497

                                Opinion filed August 8, 2014
     ______________________________________________________________________________

                                                    IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                        A.D., 2014
     ______________________________________________________________________________

     ANDRE HARRISON,                           )     Appeal from the Circuit Court
                                               )     of the 14th Judicial Circuit
           Plaintiff-Appellant,                )     Rock Island, Illinois,
                                               )
                                               )
           v.                                  )
                                               )     Appeal No. 3-13-0497
     DEERE AND COMPANY, a Corporation,         )     Circuit No. 10 L 75
                                               )
           Defendant-Appellee,                 )     The Honorable Lori R. Lefstein
                                               )     Judge, Presiding.
                                               )
     ______________________________________________________________________________

           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 first 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 earlier

     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

     company policy. Id. His actions "created a risk of workplace violence as well as a risk of

     financial liability for [the defendant]." Id. ¶ 83. His claims of racial discrimination or retaliation

     were found to be unsupported. Id. ¶ 79. There was no supreme court 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. Harrison 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 writ 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 associations, 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 were racially motivated, constituted an invasion of his privacy and resulted in his

     wrongful termination.



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

     court: (1) the granting 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 grants of Deere's motions to dismiss the plaintiff's invasion of privacy and wrongful

     termination claims; and (3) the denial of Harrison's posttrial motion for leave to file a third

     amended complaint seeking to add a race discrimination claim.

¶6                                 SUMMARY 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 director, would be the contact person for the matter. Also on September 11, Martin

     received the investigative report (report) setting out the facts disclosed through the investigation.

     This report was used in determining that Harrison should be discharged.

¶9          On September 14, Martin mailed the plaintiff documents contained in his personal file,

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




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   notified Martin via email of 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 information related to his discharge and stating that such

   information was needed for his adequate legal representation. Martin advised 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 Deere'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 resent 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 Labor on October 24. His original civil complaint seeking

   enforcement of section 2 of the Act (820 ILCS 40/2 (West 2008)) was filed on June 16, 2010.

¶ 12      During trial, Martin testified that she was familiar with Deere's "Human Resource Policy

   and Guidance Statement 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.

¶ 13      Martin acknowledged that documents 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


          1
              Harrison later complained about this delivery, asserting that he had not hired counsel to

   assist him in securing the investigation report.


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   not believe that the report should be part of Harrison's personnel file because it 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 established 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 personally placed such a

   report in a personnel file.

¶ 15                                       ANALYSIS

¶ 16                       I. Propriety of 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 40/12(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 willfully and knowingly 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 supported by the record, regardless of the reasoning 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 plain and ordinary meaning of




                                                      5
   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 personnel file review request. Section 2 of the Act requires: "Every

   employer shall, upon an employee's request *** permit the employee to inspect any personnel

   documents which are, have been or are intended to be used in determining that employee's

   qualifications 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 7 day time frame required of the

   statute. However, Deere provided these documents to Harrison on October 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 directly 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, could be transferred to him through the

   attorneys. 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



                                                     6
   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 actually 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. Specifically, 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 persuasion 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 the 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 statute 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



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   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 violation 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 only

   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

   wrongful termination and invasion of privacy claims. He further argues that the trial court erred

   in denying his motion for leave to file a third 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).




                                                     8
¶ 29      In the instant case, the trial court granted Deere's summary 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 defendant'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 supreme court review in either case 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 Their Privies



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¶ 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 working 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 IL App (3d) 100810, ¶¶ 43-81. Because the managers were

   acting as agents for Deere, the Illinois Appellate Court observed that Deere "would have been

   liable for all of the actions taken by its employees" when they terminated Harrison's

   employment. Id. ¶ 51. Additionally, 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. ¶ 83. The eight managers and Deere shared an interest in preventing such

   violence and liability. Therefore, because the managers were acting as Deere's 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 marks omitted.) Deere, 533 F. App'x at

   649.

¶ 37       DeFlon v. Sawyers, 2006-NMSC-025,139 N.M. 637, 137 P.3d 577 (2006), 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 previous 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 acting 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 aligned interest, there is privity.



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¶ 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 Action

¶ 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 IL 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 rise 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 intentionally interfered

   with the Harrison's employment. Addington, 2011 IL App (3d) 100810. Such facts included the

   premier reason for gathering information about Harrison's personal relationships by Deere's

   employees, how the information was gathered, what information was gathered, and the

   management discussion and decisions supported by that information. Id. ¶¶ 64, 73-74. The



                                                      11
   actions used to gather and the decisions based on these facts were determined to have been

   within the scope of the responsibilities of the 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] associations[,] *** communications [and] nonemployment activities." 820 ILCS

   40/9 (West 2008). He asserts that he was unable to bring this issue in Addington because (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 effectively 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

   would 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

   alleged 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 bringing 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 had




                                                    12
   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 management order 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 amend the case management

   order.

¶ 50        Additionally, 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 yet 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 court found to be appropriate actions of Deere's managers. Addington,

   2011 IL 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.



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   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 counts X, XI, and XII in Addington. There the court noted that

   "[O]nce the company was aware of appellant's involvement in this other potentially inappropriate

   employee related relationship, additional investigation was appropriate." Addington, 2011 IL

   App (3d) 100810, ¶ 74.

¶ 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 and 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, which 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 purpose 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 for

   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



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   by the trial court. Keefe-Shea Joint Venture v. City of Evanston, 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 resolved 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 that it cannot

   be litigated again.

¶ 58                                          CONCLUSION

¶ 59       We affirm the trial court's denial of Harrison's request for relief under section 12 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.




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