Henry Beverly v. Abbott Laboratories

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 23-2577

HENRY BEVERLY,

Plaintiff-Appellant,

v.

ABBOTT LABORATORIES, an Illinois Corporation, and VICTORIA

LUO,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:17-cv-05590 — Sarah L. Ellis, Judge.

____________________

ARGUED APRIL 10, 2024 — DECIDED JULY 10, 2024

____________________

Before RIPPLE, HAMILTON, and BRENNAN, Circuit Judges.

BRENNAN, Circuit Judge. Henry Beverly worked as a finan-

cial analyst for Abbott Laboratories. That company was re-

structured, and his job duties changed. Beverly sought and

received a personal leave of absence from Abbott, during

which he started working for Cook County. Beverly did not

tell Abbott about his other employment while on leave. That

leave was extended twice. But when he sought a third

2 No. 23-2577

extension, his position at Abbott had been filled, and the com-

pany terminated his employment.

Beverly sued Abbott alleging, among other claims, racial

discrimination and defamation. The district court granted

summary judgment on some of his claims, and others went to

trial before a jury who found for Abbott. Beverly appeals cer-

tain pretrial, trial, and posttrial rulings. We affirm the district

court’s decisions in full.

I

We begin by examining Beverly’s work history, his ex-

tended leave of absence, and his termination. For the district

court’s rulings on summary judgment and judgment as a mat-

ter of law, we view that evidence in the light most favorable

to him and draw all reasonable inferences in his favor. Nav-

ratil v. City of Racine, 101 F.4th 511, 516 (7th Cir. 2024) (for sum-

mary judgment); Sun v. Xu, 99 F.4th 1007, 1013 (7th Cir. 2024)

(for judgment as a matter of law).

A. Beverly’s Work at Abbott and Change in Job Duties

Beverly, a Black man, worked briefly for Abbott in 2002

and was later rehired as a senior financial analyst in 2007. In

2008, he transferred laterally to a new position in which he

was supervised by Kevin Bowler from 2008 to mid-2012.

In late 2012, Victoria Luo became Beverly’s direct supervi-

sor. When Luo took over, Beverly assumed some of Bowler’s

prior duties and handled any work for which Luo did not

have the certification or training. Luo also enlarged Beverly’s

role to include more contact with and training of certain man-

agers. In 2012 and 2013, Luo tasked Beverly with preparing

templates and programs to allow other employees to report

No. 23-2577 3

on their new sales. Beverly also created new financial models

and prepared a variety of reports.

Abbott split into two companies in 2013, Abbott and

AbbVie. As part of this restructuring, Abbott eliminated the

team which handled systems work for Luo’s group. Her

group hired new people and shifted duties from 2013 to 2015.

The new hires in Luo’s group were all Asian men.

After this restructuring, Luo shifted some of Beverly’s du-

ties, including uploading annual forecasts and new sales

transactions and manipulating data and spreadsheets, to a

new team member. Beverly trained that team member on how

to perform those duties. He also retained responsibility for re-

porting-related training. Later in 2014, Luo reduced Beverly’s

role and his interaction with affiliates, placing him on a new

project.

Beverly had regularly attended different company meet-

ings. But by 2013 Beverly was excluded from certain meetings

attended by other team members. He no longer had the op-

portunity to attend desired training sessions, although in 2014

Luo approved Beverly to attend an annual conference about

healthcare information systems. Beverly also traveled to re-

ceive training in Mexico. Over the same period, other team

members attended different trainings overseas. Abbott insti-

tuted a travel freeze in 2014 on all overseas travel for meetings

and trainings.

By 2015, Beverly no longer prepared several reports, fur-

ther reducing his job duties. He testified that in 2015, all that

remained for him to do was to prepare part of a PowerPoint

presentation for a meeting and to answer ad hoc requests

4 No. 23-2577

from affiliates. This amounted to about one to two hours of

work per week.

Abbott never disciplined Beverly or placed him on a per-

formance improvement plan. He received various letters of

recognition and awards during his employment. In his 2012,

2013, and 2014 performance reviews, Luo gave Beverly an

“achieved expectations” rating. Beverly’s base rate of pay in

April 2012 was $94,820.74. That rate increased to $97,902.41 in

April 2013 and $100,839.48 in March 2014.

B. Beverly’s Leave of Absence and Termination

On March 16, 2015, Beverly requested a personal leave of

absence from Abbott to begin on March 20, with an antici-

pated return date of May 25. Before his request, and unknown

to Abbott, Beverly had applied for and obtained a full-time

position with Cook County. Luo granted Beverly’s requested

leave on March 20, but she told him that due to its duration,

Abbott may have to search for a backup to cover his job dur-

ing his absence.

Beverly understood Abbott’s leave policy when he made

his request. In relevant part, the policy provides that Abbott

retains the discretion to grant or deny leave based on opera-

tional needs and the employee’s performance. The policy

does not limit or prohibit Abbott’s ability to terminate the em-

ployment of an at-will employee. In fact, Abbott does not

guarantee reinstatement from a personal leave of absence.

Notably, the policy also prohibits an employee from obtain-

ing “full-time employment while on a personal leave of

absence,” and if the employee does so, “the leave will be can-

celed and termination will be automatic.”

No. 23-2577 5

While on leave, Beverly reached out to Luo to discuss his

leave and how things were at Abbott. Luo said everything

was going well and that Beverly’s work was covered. Soon

after, Beverly emailed Luo and Abbott’s third-party benefits

administrator to request an extension of his personal leave of

absence through June 29. Luo approved the extension the next

day. A few days later, Luo, with the aid of Abbott’s human

resources department, posted Beverly’s position on May 22,

2015. Luo never informed Beverly that she posted his job in-

ternally.

On June 24, Beverly again asked to extend his personal

leave of absence through July 31. Luo approved his request.

While Beverly remained out on his extended leave, Abbott of-

fered his position to Bruce Tsai, an Asian American who had

previously worked at AbbVie. Tsai accepted.

On July 26, Beverly sought a third leave extension, this

time through August 22. Luo, rather than responding to Bev-

erly, contacted Abbott’s human resources and spoke with

Kevin Mason about terminating Beverly’s employment. Ma-

son, the director of business human resources, supported

Luo’s decision to terminate Beverly’s employment with Ab-

bott. On July 29, Mason and Luo called Beverly and informed

him that they were denying his request to extend his personal

leave of absence. This amounted to a termination of employ-

ment, effective July 31.

Luo later called Global Security, the Abbott department

responsible for investigating safety and security concerns, to

discuss the deactivation of Beverly’s work badge and his ac-

cess to the Abbott worksite. Per the Global Security employee

that spoke with Luo, Luo stated that Beverly had a “history of

lying” and could be a security threat. Luo said she did not

6 No. 23-2577

want personal contact with Beverly and that she did not feel

comfortable with him. Luo did not specify any objectionable

or untoward statements that Beverly had made, she did not

report that Beverly lied in any of his performance reviews,

and she denied during her later deposition that Beverly lied

to her. Global Security prepared a report of this conversation,

which other Abbott employees could access.

II

A. Pretrial Proceedings

Beverly sued Abbott and Luo. In his operative second

amended complaint, Beverly’s claims included, as relevant on

appeal, (1) racial discrimination and retaliation, related to re-

duction of his job duties and his termination, in violation of

42 U.S.C. § 1981 and the Illinois Human Rights Act (“IHRA”),

775 Ill. Comp. Stat. 5/1-101 et seq.; and (2) defamation against

Abbott and Luo for the report that said Beverly had a “history

of lying.”

After years of discovery and COVID-related delays, de-

fendants moved for summary judgment. In response, defend-

ants raised the affirmative defense that Luo’s statement was a

non-actionable opinion. The district court granted in part and

denied in part Abbott’s motion. The court granted summary

judgment on those portions of Beverly’s racial discrimination

and retaliation claims connected to the termination of his em-

ployment. The court denied summary judgment on those

same claims as to the reduction of Beverly’s job duties. De-

fendants’ motion for summary judgement on the defamation

claim was also denied.

Shortly after the summary judgment decision, the parties

filed proposed jury instructions. On the defamation claim,

No. 23-2577 7

defendants stated that they intended to proceed “upon the

understanding that their opinion defense to the defamation

claim will be decided by the court as a matter of law based

upon the evidence at trial.”

At the final pretrial conference, Abbott and Luo again

raised the defense that the statements Beverly challenged as

defamatory were non-actionable opinions. The district court

asked if Beverly objected to “that defense being decided by

the Court rather than the jury as a matter of law?” Beverly’s

counsel did not, so the district court reserved ruling, stating

that it planned to wait until the close of Beverly’s case-in-chief

to rule.

B. Trial

A four-day jury trial took place in January 2023. The day

before trial, defendants filed a bench brief arguing their opin-

ion defense to Beverly’s defamation claim. No motion was

filed, and the brief did not cite any rule of civil procedure. The

district court said it would not rule until Beverly could be

heard. Beverly responded on the second day of trial. Later

that same day, the district court entered an order for defend-

ants on Beverly’s defamation claim. The court reasoned, “the

opinion defense involves a question of law that [it] must

decide before the defamation claim may go to the jury and

Beverly cannot claim surprise.” Illinois law provides that a

statement a person is a liar—without the context of specific

facts—is an opinion. Because the court had no specific facts

against which to test Luo’s statement, it concluded that the

challenged statement was a non-actionable opinion.

Some of the district court’s rulings during the jury trial are

disputed. The initial two concern Beverly’s questioning of

8 No. 23-2577

Luo. First, when Beverly’s counsel questioned Luo on the

topic of Tsai’s hiring, she attempted to impeach her before es-

tablishing that a deposition occurred. Eventually, with the

court’s guidance, Beverly’s counsel completed her impeach-

ment of Luo. Second, after the district court had dismissed the

defamation claim, Beverly’s counsel attempted to question

Luo about her conversation with Global Security, which was

the basis for the now-dismissed defamation claim. Defense

counsel objected based on relevance. When the court asked

why Beverly’s counsel was proceeding down this line of ques-

tioning, Beverly’s counsel initially said, “I’m not sure what —

I’m not sure what I can ask her[.]” In a later discussion with

the court, Beverly’s counsel said the testimony went to Luo’s

animus towards Beverly. The district court rejected this argu-

ment. Beverly’s counsel then offered that it was relevant to

Luo’s credibility, which the district court rejected.

Comments by Abbott’s counsel during closing argument

are also contested, though this objection was not raised until

later in Beverly’s motion for new trial. Those remarks faulted

Beverly for the absence of a “tear or a whimper” and con-

tended that “[t]his is business for him, nothing but business.”

After closing arguments, the district court instructed the jury

that those arguments were not evidence and should not be

considered if contradicted by the evidence. The jury was spe-

cifically instructed not to consider any evidence pertaining to

the defamation claim during its deliberations. The court also

instructed, “if I told you to disregard any testimony or exhib-

its or struck any testimony or exhibits from the record, such

testimony or exhibits are not evidence and must not be con-

sidered.”

No. 23-2577 9

The jury found for Abbott on all of Beverly’s claims. Bev-

erly moved for a new trial, which the district court denied.

This appeal followed.

III

This case narrowed during its lengthy journey through

motion practice and trial. Beverly contends on appeal that the

district court: (1) erroneously granted Abbott summary judg-

ment on his racial discrimination and retaliation claims re-

lated to his termination; (2) incorrectly entered judgment as a

matter of law for Abbott on his defamation claim; and (3)

committed numerous errors during the jury trial.

A. Summary Judgment

Beverly argues the district court erred by finding that a re-

duction in his job duties did not amount to a constructive dis-

charge and by granting summary judgment on the portions

of his racial discrimination and retaliation claims related to

his termination.

Summary judgment is proper if the pleadings, deposi-

tions, answers to interrogatories and admissions on file,

together with the affidavits show “that there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56. In employ-

ment discrimination cases, the question at summary judg-

ment is “whether the evidence would permit a reasonable

factfinder to conclude that the plaintiff’s race … caused the

discharge or other adverse employment action.” Ortiz v. Wer-

ner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016).

10 No. 23-2577

1. Constructive discharge and changes in Beverly’s job du-

ties

Beverly challenges the district court’s finding that his re-

duction in job duties, while an adverse employment action

that survived summary judgment, did not amount to a con-

structive discharge.

This court has said that adverse employment actions gen-

erally fall into three categories: (1) termination or reduction in

compensation, fringe benefits, or other financial terms of em-

ployment; (2) transfers or changes in job duties that cause an

employee’s skills to atrophy and reduce future career pro-

spects; and (3) unbearable changes in job conditions, such as

a hostile work environment or conditions amounting to con-

structive discharge. E.g., Barton v. Zimmer, Inc., 662 F.3d 448,

453–54 (7th Cir. 2011) (emphasis added).

To prevail on a claim of constructive discharge, Beverly

must show “that he was forced to resign because his working

conditions, from the standpoint of the reasonable employee,

had become unbearable.” Chapin v. Fort-Rohr Motors, Inc., 621

F.3d 673, 679 (7th Cir. 2010). We assess such a claim “from the

viewpoint of a reasonable employee.” Ziccarelli v. Dart, 35

F.4th 1079, 1091 (7th Cir. 2022); Saxton v. Am. Tel. & Tel. Co.,

10 F.3d 526, 537 (7th Cir. 1993).

This court recognizes two forms of constructive discharge:

when an employee resigns due to discriminatory harassment,

and “[w]hen an employer acts in a manner so as to have com-

municated to a reasonable employee that she will be termi-

nated … .” Equal Emp. Opportunity Comm'n v. Univ. of Chi.

Hosps., 276 F.3d 326, 332 (7th Cir. 2002). The first requires “a

discriminatory work environment even more egregious than

No. 23-2577 11

the high standard for hostile work environment.” Scaife v. U.S.

Dep’t of Veterans Affs., 49 F.4th 1109, 1119 (7th Cir. 2022). The

second requires the plaintiff to show that “she was forced to

resign because her working conditions became so intolerable

that a reasonable person would have felt compelled to re-

sign.” Id. (cleaned up).

Conditions amounting to constructive discharge must be

pervasive and extreme. See, e.g., Wince v. CBRE, Inc., 66 F.4th

1033, 1043 (7th Cir. 2023) (no constructive discharge where

plaintiff provided information about an isolated “severe” in-

cident of racial discrimination); Porter v. Erie Foods Int’l, Inc.,

576 F.3d 629, 631–33, 641 (7th Cir. 2009) (where employees

taunted the plaintiff with nooses and threatened him with

comments about his death because of his race, that conduct

“clearly qualifies as egregious for purposes of constructive

discharge”); Patton v. Keystone RV Co., 455 F.3d 812, 818 (7th

Cir. 2006) (constructive discharge where plaintiff’s boss was

obsessive and capable of and desirous of physically assault-

ing her).

Beverly claims that, beginning sometime in 2013, Luo ma-

terially altered his job duties and excluded him from meetings

and trainings, leaving him with at most one to two hours of

work per week. This could rise to the level of a constructive

discharge, Beverly says, because Luo stripped him of all

meaningful work but still required him to report to work with

nothing to do.

For working conditions to constitute constructive

discharge, an employer’s actions must communicate to the

employee that he “immediately and unavoidably will be ter-

minated.” Wright v. Ill. Dept. of Child. & Fam. Servs., 798 F.3d

513, 529 (7th Cir. 2015). Beverly continued to work at Abbott

12 No. 23-2577

for about two years after his job duties began to change. He

also felt secure enough in his employment with Abbott to ask

for a personal leave of absence and repeated extensions. There

is no indication that Abbott intended to fire Beverly. Alt-

hough Beverly testified that he feared termination when he

requested his personal leave of absence, nothing suggests that

Abbott intended to take such action around that time so as to

make his termination “an imminent and inevitable event.”

Chapin, 621 F.3d at 680 (collecting cases). Although Beverly’s

job duties were reduced, nothing showed that his time at Ab-

bott was coming to an end. He did not receive poor perfor-

mance reviews, and he continued to receive salary increases.

While Beverly had fewer job duties due to the reorganization

of Abbott and hiring of new team members, he does not allege

he experienced any other changes or bad experiences with his

coworkers and supervisor.

For these reasons, the district court correctly concluded

that the reduction in Beverly’s job duties did not amount to a

constructive discharge. Notwithstanding that finding, the dis-

trict court considered the reduction to be an adverse employ-

ment action and allowed those claims to continue.

2. Discriminatory animus and Beverly’s termination

Beverly also challenged his termination, saying it was a

racially discriminatory adverse employment action in viola-

tion of 42 U.S.C. § 1981 and the IHRA. To prove discrimina-

tory animus motivated an adverse employment action under

those statutes, Beverly must show that his race caused the ac-

tion. See Lewis v. Ind. Wesleyan Univ., 36 F.4th 755, 759 (7th Cir.

2022); Zaderaka v. Ill. Hum. Rts. Comm’n, 545 N.E.2d 684, 687

(Ill. 1989). On Beverly’s § 1981 claim, he was required to es-

tablish but-for causation. See Lewis, 36 F.4th at 759. For his

No. 23-2577 13

IHRA race discrimination claim, the protected category must

have been a motivating factor in the termination. See Zaderaka,

545 N.E.2d at 687.

Beverly contends that he was fired because of his race, and

that Abbott proffered pretextual reasons for doing so. Specif-

ically, he argues that Abbott did not follow its personal leave

of absence policy, and that Luo lied when she said that she

needed someone to perform Beverly’s job duties. Abbott dis-

agrees and submits that Beverly can cite to no evidence of dis-

crimination.

“In determining whether an employer’s stated reason [for

discharge] is pretextual, the question is not whether the em-

ployer’s stated reason was inaccurate or unfair, but whether

the employer honestly believed the reason it has offered to

explain the discharge.” Harper v. C.R. Eng., Inc., 687 F.3d 297,

311 (7th Cir. 2012) (cleaned up). “Pretext involves more than

just faulty reasoning or mistaken judgment on the part of the

employer; it is [a] lie, specifically a phony reason for some ac-

tion.” Monroe v. Ind. Dep’t of Transp., 871 F.3d 495, 505 (7th Cir.

2017) (alteration in original). Speculation about colleagues’ ill

motives is too conclusory to create an issue of material fact.

See Johnson v. Advoc. Health & Hosp. Corp., 892 F.3d 887, 899

(7th Cir. 2018); see also Sauzek v. Exxon Coal USA, Inc., 202 F.3d

913, 918 (7th Cir. 2000) (“Speculation based on suspicious tim-

ing alone … does not support a reasonable inference of retal-

iation … .”). Causation can be shown through evidence of, for

example, comments or animus toward the protected group,

suspicious timing, more favorable treatment of similarly situ-

ated employees, or pretextual reasons given for the adverse

employment action. Monroe, 871 F.3d at 504.

14 No. 23-2577

Abbott’s proffered reason for terminating Beverly’s em-

ployment was that the company needed someone to take on

those job duties, so it hired a replacement. Abbott did so only

after repeated extensions of Beverly’s personal leave of ab-

sence.

Abbott’s proffered reason for firing Beverly was consistent

with the undisputed facts. He understood Abbott’s personal

leave of absence policy, so he knew that Luo may need help

and seek to replace him during his leave. Yet, Beverly contin-

ued to request extensions, three in total. Because the personal

leave of absence policy provided for only unprotected leave,

Beverly cannot complain that Abbott terminated him based

on its decision to hire someone in his place while he remained

on a personal leave of absence. Widmar v. Sun Chem. Corp., 772

F.3d 457, 464 (7th Cir. 2014) (“This court has repeatedly stated

that it is not a super-personnel department that second-

guesses employer policies that are facially legitimate … .”).

Beverly’s assertion that Abbott lied about its reason for

terminating his employment similarly fails to support his al-

legations of pretext. He contends that, had Luo made clear to

him the need for his help at work, he would have gladly re-

turned to Abbott from his personal leave of absence. But Bev-

erly had already secured a job with Cook County and failed

to tell Abbott about his new position. Moreover, it was within

Abbott’s discretion whether to inform Beverly about its

search for new employees and its decision to terminate his

employment after his personal leave of absence.

The district court ruled correctly that Abbott did not have

a pretextual or discriminatory reason for terminating Bev-

erly’s employment. None of his arguments persuade us oth-

erwise.

No. 23-2577 15

B. Defamation Claim

Beverly takes issue with the district court’s mid-trial order

entering judgment as a matter of law on his Illinois state law

defamation claim. We first consider the timing of this order,

then its merits.

1. Timing

Beverly alleges that Abbott and Luo defamed him when

Luo told Global Security that Beverly had a “history of lying.”

Defendants raised the affirmative defense that Luo’s state-

ment was a non-actionable opinion. The defendants did not

move for summary judgment on this defense. Rather, during

trial preparation, they said they would stand on this defense.

Their proposed jury instructions stated, “Defendants proceed

here based upon the understanding that their opinion defense

to the defamation claim will be decided by the court as a mat-

ter of law based upon the evidence at trial.”

A district court has broad discretion in when to enter judg-

ment as a matter of law on a claim. Under Federal Rule of

Civil Procedure 50(a), “[i]f a party has been fully heard on an

issue during a jury trial and the court finds that a reasonable

jury would not have a legally sufficient evidentiary basis to

find for the party on that issue, the court may … resolve the

issue against the party… .” And, importantly for this case, a

motion is not required. See FED. R. CIV. P. 50(a). Yet, as this

court has explained in the analogous context of summary

judgment, a sua sponte judgment “is a hazardous procedure

which warrants special caution.” Osler Inst., Inc. v. Forde, 333

F.3d 832, 836 (7th Cir. 2003).

We review a district court’s entry of judgment as a matter

of law under the federal standard, de novo, even where the

16 No. 23-2577

district court applies state law to the merits of the motion. See,

e.g., Hall v. Flannery, 840 F.3d 922, 931 (7th Cir. 2016) (citing

Sokol Crystal Prods., Inc. v. DSC Commc’ns. Corp., 15 F.3d 1427,

1432 (7th Cir. 1994); cf. Osler Inst., 333 F.3d at 837. The stand-

ard for granting judgment as a matter of law “mirrors” the

standard for granting summary judgment. Surgery Ctr. at 900

N. Mich. Ave., LLC v. Am. Physicians Assurance Corp., 922 F.3d

778, 784 (7th Cir. 2019) (cleaned up); see Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250–51 (1986)).

The opinion defense to defamation is a question of law to

be addressed by the court, not the jury. See Imperial Apparel,

Ltd. v. Cosmo’s Designer Direct, Inc., 227 Ill. 2d 381, 398 (2008). 1

The viability of the defamation claim and the strength of the

opinion defense were at issue throughout this litigation. The

court permitted both sides to brief the claim and the defense

before it decided the question. The district court’s ruling thus

should not have caught Beverly off guard.

Still, the district court’s approach—granting judgment as

a matter of law at trial during the plaintiff’s case—should be

avoided if possible. Such timing is disruptive and risks mak-

ing the jury trial unfair. Beverly was prevented from offering

promised evidence of the defamation, yet Abbott was able to

present evidence that the alleged defamatory statement was

true.

1 Beverly’s counsel conceded at the final pretrial conference that she

“wouldn’t object if there was … a basis for the Court to determine as a

matter of law [the defamation claim].” Transcript of Final Pre-Trial Conf.

at 20, Beverly v. Abbott Lab’ys, No. 1:17-cv-05590 (N.D. Ill. Dec. 21, 2022),

ECF No. 214.

No. 23-2577 17

Even if the evidence Beverly wished to offer had been ad-

mitted, however, he still would have lost on the merits. And

Beverly has not identified evidence that could have been pre-

sented that would have overcome Abbott’s protected opinion

defense. So any arguable error with the district court’s timing

was harmless.

Beverly also claims prejudice because the order on the def-

amation defense was entered after opening statements. The

defamation claim had already been discussed before the jury,

but all evidence on that claim had not yet been received. He

asserts the timing adversely affected his lawyer’s credibility

and confused the jury.

But the jury was specifically instructed not to consider any

evidence pertaining to the defamation claim during its delib-

erations. The court also instructed, “if I told you to disregard

any testimony or exhibits or struck any testimony or exhibits

from the record, such testimony or exhibits are not evidence

and must not be considered.” These instructions addressed

any potential prejudice resulting from the timing of the dis-

trict court’s judgment. See Stollings v. Ryobi Techs., Inc., 725

F.3d 753, 769 (7th Cir. 2013) (citing United States v. Lee, 558 F.3d

638, 649 (7th Cir. 2009) (“Absent any showing that the jury

could not follow the court’s limiting instruction, we presume

that the jury limited its consideration of the testimony in ac-

cordance with the court’s instruction.”)). So, again, any error

is harmless.

2. Merits

To prove defamation under Illinois state law, Beverly

must show: (1) defendants made a false statement about him;

(2) defendants made an unprivileged publication of that

18 No. 23-2577

statement to a third party; and (3) the publication caused

damages, or the harm is obvious on its face. See Basile v. Pro-

metheus Glob. Media, 225 F. Supp. 3d 737, 742 (N.D. Ill. 2016)

(applying Illinois law).

Whether a statement is an opinion or assertion of fact is a

question of law. Moriarty v. Greene, 732 N.E.2d 730, 740 (Ill.

App. 2000) (citing Owen v. Carr, 497 N.E.2d 1145, 1148 (Ill.

1986)). To aid in this legal determination, courts ask whether:

(1) the statement “has a precise and readily understood mean-

ing;” (2) the statement is factually verifiable; and (3) the “lit-

erary or social context signals that [the statement] has factual

content.” Solaia Tech., LLC v. Specialty Pub. Co., 852 N.E.2d 825,

840 (Ill. 2006). “The test is restrictive: a defamatory statement

is constitutionally protected only if it cannot be reasonably in-

terpreted as stating actual fact.” Id. (citing Kolegas v. Heftel

Broad. Corp., 607 N.E.2d 201, 208 (Ill. 1992)). “[B]ut if it is plain

that the speaker is expressing a subjective view, an interpre-

tation, a theory, conjecture, or surmise, rather than claiming

to be in possession of objectively verifiable facts, the state-

ment is not actionable.” Haynes v. Alfred A. Knopf, Inc., 8 F.3d

1222, 1227 (7th Cir. 1993) (citing Milkovich v. Lorain J. Co., 497

U.S. 1, 17–21 (1990)). A non-actionable statement of opinion is

one where the statements are “too broad, conclusory, and

subjective to be objectively verifiable.” Liu v. Nw. Univ., 78 F.

Supp. 3d 839, 850 (N.D. Ill. 2015).

Illinois courts have repeatedly held that general state-

ments about a person’s honesty constitute non-actionable

statements of opinion. See Quinn v. Jewel Food Stores, Inc., 658

N.E.2d 1225, 1229–30 (Ill. App. 1995). “[T]he general state-

ment that someone is a liar, not being put in context of specific

No. 23-2577 19

facts, is merely opinion.” Piersall v. SportsVision of Chi., 595

N.E.2d 103, 107 (Ill. App. 1992).

Beverly argues that because Luo, as Beverly’s supervisor,

made these statements in the employment context, that

should alter the analysis. But the statement at issue is still too

broad and generalized to be actionable. See Perfect Choice Ex-

teriors, LLC v. Better Bus. Bureau of Cent. Ill., Inc., 99 N.E.3d 541,

550–51 (Ill. App. 2018) (holding defendant’s grading of and

comments about plaintiff’s unsatisfactory performance were

constitutionally protected opinions, not verifiable statements

of fact that could support a claim for defamation). Luo’s state-

ment that Beverly had a “history of lying” is the type of vague

and generalized opinion protected under the First Amend-

ment. While the line between non-actionable statements of

opinion and actionable false factual assertions can be difficult

to parse, that is not so here.

For these reasons, the district court properly entered judg-

ment for defendants on Beverly’s defamation claim.

C. Trial Decisions

Beverly’s last contentions concern some of the district

court’s rulings at trial. He argues the court should have

granted his motion for a new trial because it: (1) abused its

discretion in deciding his defamation claim during trial; (2)

failed to follow Federal Rule of Evidence 613 in its rulings

concerning his counsel’s impeachment attempts; and (3)

should have allowed evidence at trial of Luo’s post-termina-

tion statements to Global Security. 2

2 Beverly offers three additional arguments: (1) evidence regarding

Abbott’s personal leave of absence policy and his Cook County employ-

ment should have been excluded; (2) some pretrial evidentiary rulings

20 No. 23-2577

The denial of a motion for new trial is reviewed for abuse

of discretion. See Ewing v. 1645 W. Farragut LLC, 90 F.4th 876,

886 (7th Cir. 2024). This court “shall not second-guess the de-

cision of a trial judge that is in conformity with established

legal principles and, in terms of its application of those prin-

ciples to the facts of the case, is within the range of options

from which one would expect a reasonable trial judge to se-

lect.” Liu v. Price Waterhouse LLP, 302 F.3d 749, 754 (7th Cir.

2002) (citation omitted). “[W]e reverse only if the verdict is

against the weight of the evidence, the damages are excessive,

or if for other reasons the trial was not fair to the moving

party.” Pickett v. Sheridan Health Care Ctr., 610 F.3d 434, 440

(7th Cir. 2010) (cleaned up).

Just as Beverly’s first argument on his defamation claim

fell short on de novo review, it fails under the more deferen-

tial review for the denial of a motion for new trial.

His second argument—that the court misapplied Rule 613

in its rulings concerning his counsel’s impeachment at-

tempts—also misses the mark. District courts have wide dis-

cretion to control the mode and order of presenting evidence

at trial. See FED. R. EVID. 611(a); Gong v. Hirsch, 913 F.2d 1269,

were unfair; and (3) certain remarks made by Abbott’s counsel in closing

argument should not have been allowed.

Although Beverly made numerous objections during trial, he failed to

object on these three grounds. By knowingly and intentionally deciding

not to object at trial, Beverly waived these arguments. See United States v.

Flores, 929 F.3d 443, 448 (7th Cir. 2019); see also Christmas v. City of Chicago,

682 F.3d 632, 640 (7th Cir. 2012) (“By failing to object, Plaintiffs may not

raise the issue for the first time in a motion for a new trial or on appeal.”).

Even if these arguments are only forfeited, we see no error here. See

Flores, 929 F.3d at 448.

No. 23-2577 21

1274 (7th Cir. 1990). When Beverly’s counsel tried to impeach

Luo by referencing testimony from her deposition, defense

counsel objected. The court sustained the objection, and Luo

was allowed to read the statement, and then answer whether

the statement was made during her deposition. The district

court noted that “the time between that question and coun-

sel’s attempt at impeachment spanned over fifty pages of the

transcript and a lunch recess.” Beverly’s counsel’s initial at-

tempt at impeachment was thus improper, and she needed to

re-elicit the in-court testimony she sought for impeachment

by disclosing the prior statement. See FED. R. EVID. 613(b)

(“Extrinsic evidence of a witness’s prior inconsistent state-

ment is admissible only if the witness is given an opportunity

to explain or deny the statement … .”).

A witness’s prior statement is not hearsay where it “is in-

consistent with the declarant’s testimony.” FED. R. EVID.

801(d). The attempt to impeach Luo began on the wrong foot.

By attempting to introduce an out-of-court statement without

first properly establishing the recent in-court testimony of

Luo, the use of her deposition seemed to be framed as an offer

of inadmissible hearsay. 3 The district court then aided Bev-

erly’s counsel in the impeachment process, and the examina-

tion of Luo was completed. So, no evidence was excluded

based on defense counsel’s “improper impeachment” objec-

tion.

3 Neither party raised the possibility of treating Luo’s deposition tes-

timony as a party admission under Federal Rule of Evidence 801(d)(2)(A)

and (D). Further, Rule 613(b) does not apply to statements by an opposing

party.

22 No. 23-2577

Beverly’s counsel next attempted to introduce Luo’s prior

statement without laying a proper foundation. “Under Rule

613(b), extrinsic evidence of a prior inconsistent oral or writ-

ten statement is not permitted unless the witness is afforded

an opportunity to explain or deny and the opposite party is

afforded an opportunity to interrogate him thereon.” 21 AM.

JUR. PROOF OF FACTS 2d 101 § 12. Beverly’s counsel did not first

establish that Luo gave a deposition. The district court noted

that step should be taken. Though the court assisted Beverly’s

counsel with impeachment attempts, this did not prejudice

Beverly. With that help, Beverly’s counsel presented the evi-

dence to the jury, and neither sequence provides grounds for

a new trial.

Beverly’s third argument—that the court should have al-

lowed evidence at trial of Luo’s post-termination statements

to Global Security—does not succeed either. “The decision

whether to admit evidence is a matter peculiarly within the

competence of the trial court and will not be reversed absent

a clear abuse of discretion.” Manuel v. City of Chicago, 335 F.3d

592, 595 (7th Cir. 2003) (citation omitted); see Downing v. Ab-

bott Lab’ys, 48 F.4th 793, 813 (7th Cir. 2022); Henderson v. Wilkie,

966 F.3d 530, 534 (7th Cir. 2020). This court “give[s] particu-

larly great deference to the trial court’s decision weighing

probative value against prejudice.” Cerabio LLC v. Wright Med.

Tech., Inc., 410 F.3d 981, 994 (7th Cir. 2005).

At trial and now on appeal, Beverly argues that the rele-

vance of these statements to Global Security lies in their al-

leged contradiction to Luo’s expected testimony. She testified

Beverly never intimidated her and that she called Global Se-

curity “because she … thinks he wasn’t going to give the lap-

top back … And then the jury can decide, ‘Do I believe what

No. 23-2577 23

she’s saying? … .’” The district court ruled that this evidence

was “too attenuated” of an attack on Luo’s credibility. The

court noted the reason Luo said she had concerns was that

Beverly did not return Abbott’s property, yet “the jury’s al-

ready heard he didn’t, and he didn’t return it until this week.

So, how that goes to her credibility, I don’t see the link.” That

reasoning is not an abuse of discretion.

Given our deference to trial decisions such as these, we

have not been presented with a convincing reason to overturn

the jury’s verdict and to grant a new trial.

IV

Beverly’s numerous challenges to the district court’s deci-

sions at summary judgment, trial, and after trial do not suc-

ceed for the reasons explained above. We AFFIRM the district

court in all respects.