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In yet another case of an office romance gone bad, the Seventh Circuit recently reversed a United States District Court for the Northern District jury verdict in favor of the Plaintiff in Place v. Abbott Laboratories, 215 F.3d 803 (7^th Cir. 2000).

As though an office romance gone bad wasn’t enough of a cliche, this one began at the office Christmas party. It lasted for approximately six months. Eventually, things soured and the couple was not able to work together. Place complained, alleging that she was being sexually harassed. Abbott investigated, warned the alleged harasser and developed a system where the couple, if they had to work together at all, were in the presence of a third party. Thereafter, Abbott transferred both parties so that they would not have to work together at all. Shortly after her transfer, Place claimed that her emotional condition had deteriorated and she took a medical leave of absence from her job. After a year’s leave, Place wanted to return to Abbott. Abbott requested that Place submit to an independent psychological examination. Place refused and, pursuant to policy regarding employees who took off for more than one year, Abbott fired Place.

Place filed her complaint in the Northern District alleging sexual harassment and retaliation against her by Abbott for complaining about the alleged harassment. The District Court found that Place had not been sexually harassed (a decision made by the Court). The jury, however, found that Abbott had retaliated against Place by transferring her and later by firing her after her refusal to submit to a psychological exam and awarded a total in damages of $514,656.00.

The Seventh Circuit reversed, finding that not only was Abbott’s transfer not a discriminatory act, but that the continuing violation doctrine could not be applied in light of the fact that an act such as a transfer, if discriminatory, would be easily identifiable as an act upon which an action could be brought and therefore not subject to the continuing violation doctrine. With regard to the psychological exam, the Court found that Place had been treated as any other employee had been treated under similar circumstances. Place had left Abbott claiming to be under great emotional stress and evidence showed that she had behaved erratically toward a supervisor. Place’s own therapist testified that Abbott was behaving reasonably in requesting a second opinion regarding Place’s emotional stability. In light of this evidence, Abbott could not be found to have been retaliating against Place.

The Seventh Circuit remanded to the Northern District for entry of judgment in favor of Abbott.

Lesson #2: If you have nothing nice to say...

In Garner v. Senior Living Systems the Appellate Court, First District, reversed a lower court’s dismissal of Plaintiff’s libel claim. Plaintiff was a former employee of Senior Living Systems ("SLS"). Plaintiff alleged that shortly after she resigned, a member of Defendant’s management sent a letter to SLS clients. The letter falsely accused Plaintiff of being "unethical" and of taking "illegal" actions. Plaintiff also alleged that the letter falsely accused her of "soliciting SLS clients" and various other allegedly false accusations relating to her integrity in the business world. In addition, Plaintiff alleged that in a separate letter, yet another SLS manager falsely accused Plaintiff of "software piracy and industrial espionage related to theft of trade secrets."

The lower court dismissed finding the allegedly defamatory statements susceptible to an innocent construction and not otherwise actionable. The Appellate Court, however, found the letters to contain statements that were libelous per se and not susceptible to an innocent construction. Statements are libelous per se if they fall into one of the following categories: (1) imputing the commission of a criminal offense, (2) infection with a loathsome or communicable disease, (3) imputing an inability to perform or lack of integrity in employment, (4) imputing a lack of ability to is a person’s trade or profession, and (5) imputing adultery or fornication. If statements are shown to fall into one of these categories, Plaintiff is not required to plead or prove damages, damages are assumed.

The Appellate Court found that the statements contained in the letters were sufficient to impute the commission of a crime (theft) to Plaintiff. In addition, the Court found that the statements prejudiced Plaintiff’s ability to do business in the marketplace. It has long been recognized in Illinois that statements such as those made by SLS are obviously and naturally hurtful to the person against whom such statements are made and therefore, no proof of damages are necessary.

Clearly, employers must be extremely careful about what they say after an employee has left the company. Other torts such as intentional interference with prospective economic advantage can result from such blatantly defamatory actions. In a nutshell, if you have nothing nice to, say nothing at all.

Rena M. Honorow

This article is intended to highlight areas of interest for our clients and others. It is not intended to be legal advice and it is not a substitute for advice and consultation with your lawyer.