                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                   Selch v. Columbia Management, 2012 IL App (1st) 111434




Appellate Court            JASON SELCH, Plaintiff-Appellant, v. COLUMBIA MANAGEMENT,
Caption                    COLUMBIA WANGER ASSET MANAGEMENT, L.P., BANK OF
                           AMERICA, INC., and WAM RIGHTS PARTNERSHIP, Defendants-
                           Appellees.



District & No.             First District, Third Division
                           Docket Nos. 1-11-1434, 1-11-2060 cons.


Filed                      August 29, 2012


Held                       Plaintiff was properly terminated “for cause” from his position as an
(Note: This syllabus       investment analyst for “mooning” his superiors and there was no breach
constitutes no part of     of contract involved, regardless of plaintiff’s contention that the formal
the opinion of the court   warning he received for his conduct was a contract precluding
but has been prepared      termination if plaintiff did not violate any other company standards, since
by the Reporter of         the formal warning did not constitute a contract.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 05-CH-16773; the
Review                     Hon. Kathleen M. Pantle, Judge, presiding.


Judgment                   Affirmed.
Counsel on                 Michael A. Stiegel, Brian P. Paul, and Jolanda B. Krawczyk, all of
Appeal                     Michael Best & Friedrich, of Chicago, for appellant.

                           James A. Burns, Jr., and Hannah L. Kaplan, both of Reed Smith LLP, of
                           Chicago, for appellee Bank of America, Inc.

                           Stephen Novack, P. Andrew Fleming, Andrew D. Campbell, and
                           Christopher S. Moore, all of Novack & Macey LLP, of Chicago, for
                           other appellees.


Panel                      JUSTICE MURPHY delivered the judgment of the court, with opinion.
                           Justices Neville and Salone concurred in the judgment and opinion.



                                             OPINION

¶1          Plaintiff, Jason Selch, appeals from an order of the circuit court of Cook County granting
        summary judgment in favor of defendants, Columbia Management, Columbia Wanger Asset
        Management, L.P. (C-WAM), Bank of America, Inc., and WAM Rights Partnership. On
        appeal, plaintiff asserts that the court erred in granting summary judgment where a genuine
        issue of material fact exists as to: (1) whether defendant was properly terminated for cause;
        and (2) whether C-WAM’s formal warning agreement constituted a contract. Additionally,
        plaintiff contends that the court erred in striking his late jury demand. For the following
        reasons, we affirm the judgment of the trial court.

¶2                                         I. BACKGROUND
¶3          Plaintiff, Jason Selch, filed a nine-count second amended complaint with the circuit court
        of Cook County on September 11, 2008. Plaintiff’s complaint asserted the following claims:
        declaratory judgment against Bank of America (BOA) (count I); breach of contract against
        BOA (count II); declaratory judgment against WAM Rights Partnership (the Partnership)
        (count III); tortious interference with contract against C-WAM (count IV); tortious
        interference with contract against BOA (count V); tortious interference with contract against
        BOA Columbia Management (Columbia) (count VI); breach of contract against C-WAM
        (count VII); breach of contract against Columbia and C-WAM (count VIII); and tortious
        interference with contractual relationships against Columbia and BOA (count IX).
¶4          The first six counts are based on plaintiff’s contention that defendants were not justified
        in terminating him for cause in conjunction with an October 31, 2001, letter agreement
        (Letter Agreement) between the Partnership and plaintiff. The next three counts are based
        on plaintiff’s assertion that he was terminated in violation of a formal warning letter (the

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       Formal Warning), which plaintiff contends was a contractual agreement between C-WAM
       and himself.
¶5         The parties filed cross-motions for summary judgment. On February 26, 2010, the circuit
       court granted defendants’ motion for summary judgment on counts VII and VIII, finding that
       the Formal Warning, as a matter of law, did not constitute a contract. Then, on April 19,
       2011, the circuit court granted defendants’ remaining claims for summary judgment, finding
       that, as a matter of law, plaintiff’s conduct fell under the definition of “cause” in the Letter
       Agreement. Plaintiff appealed.

¶6                               A. History of Plaintiff’s Employment
¶7         On June 27, 1994, plaintiff was hired by Wanger Asset Management, L.P. (WAM), as
       an investment analyst. In 1999, plaintiff was awarded fractional partnership appreciation
       rights in WAM, as a reward for his strong performance. After a series of transactions, WAM
       was eventually bought out by C-WAM, a subsidiary of BOA, and plaintiff obtained the right
       to a percentage of the proceeds from the sale of WAM to Liberty Financial Companies, Inc.
       (Liberty) (one of the transactions prior to the buy out by C-WAM). Plaintiff’s percentage of
       the proceeds was to be paid through an up-front payment, a three-year contingent payment,
       and a five-year contingent payment. At the time of his termination from C-WAM, the
       contingent payments were worth close to $2 million.
¶8         The initial acquisition of WAM, by Liberty, occurred on June 9, 2000. The parties
       involved executed an agreement and plan of merger (Merger Agreement) to join the two
       companies. When Liberty bought WAM, it paid an initial lump-sum payment and two
       contingent, or future, payments (Contingent Payments), based on the profitability of the new
       company, Liberty Wanger Asset Management, L.P. (L-WAM). As a result of the merger,
       plaintiff agreed to cancel his WAM fractional partnership appreciation rights for a lump-sum
       payment and two contingent payments.
¶9         In September 2009, the Partnership created the WAM rights partnership nonqualified
       profit sharing plan (the Plan) to provide for the distribution of the Contingent Payments to
       plaintiff and others in his position. As a part of the Plan, the participants in the Plan could
       lose their rights to the Contingent Payments if they were terminated for “cause” or for “good
       reason,” as defined in the Plan.
¶ 10       After the acquisition of WAM by L-WAM, Liberty again put itself up for sale. As a result
       of this decision, Liberty provided its employees, including plaintiff, with an employment
       agreement (Agreement) in order to ensure that they were secure in their positions. The
       Agreement provided employees with at least two years of employment from the date of the
       closing of any sale a severance package totaling $695,000 plus benefits. Again, as with the
       Plan, the Agreement identified that employees could be terminated by the company for
       “cause” or “good reason” and noted that if employees were thus terminated, they would
       sacrifice their severance packages. The Agreement defined “cause” for termination as a:
           “conviction of a felony, engaging in misconduct that injures the Company, performing
           your duties with gross negligence or any material breach of your fiduciary duties as an
           employee of the Company.”

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¶ 11       Likewise, the Agreement defined “good reason” for termination as:
           “(i) a reduction in your base compensation, (ii) a material change in your level of work
           responsibilities which has not been remedied within 30 days after you have given written
           notice of such claimed event or (iii) a requirement that you be based at a location more
           than 50 miles outside the Chicago metropolitan area.”
¶ 12       Six months after plaintiff executed the Agreement, Liberty and Fleet National Bank
       (Fleet) executed a transaction, whereby Fleet acquired the outstanding stock and equity of
       Liberty, the Agreement went into effect, and L-WAM became C-WAM.
¶ 13       The Letter Agreement, which was created on October 31, 2001, through the transaction
       of Fleet and Liberty, amended the Merger Agreement. There were nine parties to the Letter
       Agreement: L-WAM; BOA (then FNB); the Partnership; WAM Acquisition GP, Inc.; and
       Ralph L. and Leah Z. Wanger, Charles P. McQuaid, Robert A. Mohn, and John H. Park. The
       Letter Agreement again provided that an employee or partner of C-WAM would lose his or
       her right to receive the Contingent Payments if he or she were terminated for “cause,” as
       defined in the companies’ respective employment agreements. Liberty and Fleet officially
       became C-WAM on November 1, 2001.
¶ 14       Finally, on April 1, 2004, Fleet merged with BOA and C-WAM came to be owned by
       Columbia, a subsidiary of BOA. BOA became the umbrella company for all those involved.
       BOA assumed the rights and obligations which had been created by Fleet under the October
       31, 2001, Letter Agreement.

¶ 15                                   B. Plaintiff’s Termination
¶ 16                                      1. The “Mooning”
¶ 17       On April 27, 2005, plaintiff was informed that a friend and colleague of his at C-WAM,
       Chris O’Dea, had been terminated because he refused to accept a lower wage in his new
       position within Columbia and BOA. Plaintiff additionally found out that Roger Sayler,
       Columbia’s chief operating officer (COO) in New York, and Charles McQuaid, C-WAM’s
       chief investment officer (CIO) in Chicago–and plaintiff’s direct boss in the Columbia/BOA
       hierarchy–had terminated O’Dea earlier that day.
¶ 18       In response to this action, plaintiff testified that he was very upset and wanted to tell
       Sayler and McQuaid how he and the rest of the team felt about O’Dea’s termination. In order
       to do so, plaintiff opened the door to the conference room in which Sayler and McQuaid
       were seated, and walked in. Once in the conference room, plaintiff testified–and Sayler and
       McQuaid concurred–that he asked the two men if he had a noncompete agreement with the
       company. Sayler and McQuaid responded that plaintiff did not, and plaintiff proceeded to
       unbuckle his pants, pull them down, and “moon” Sayler and McQuaid. Afterwards, Sayler
       and McQuaid testified that plaintiff pulled up his pants and stated that he hoped Sayler would
       never come back to the Chicago office. Plaintiff then walked out of the conference room.
¶ 19       Plaintiff testified that he knew that his behavior–“mooning” Sayler and McQuaid–could
       potentially cause him to lose his job, and that he asked about the noncompete agreement for
       that reason; so that he could potentially find new employment if he were terminated. Sayler


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       responded by saying, “Wow, I don’t believe that just happened. We’ll have to figure out how
       to deal with that, we’ve got to, we’ve got more things we have to talk about.” He then noted
       that if the BOA chief executive officer, Keith Banks, were present, plaintiff would have been
       terminated on the spot. The meeting then ended with no decision about what to do regarding
       plaintiff’s “mooning.”

¶ 20                                2. The Formal Warning Letter
¶ 21        In response to plaintiff’s actions, McQuaid, Sayler, Chris Cooley (vice-president and
       executive human resources representative of BOA, who was assigned to C-WAM), Chris
       Hamilton (C-WAM’s human resources manager), and Jay Price (BOA’s associate general
       counsel) met to discuss an appropriate action for dealing with the “mooning.” Instead of
       terminating plaintiff, the executive management group (those mentioned above), got
       approval from Sayler to discipline plaintiff by issuing him a formal written warning (Formal
       Warning).
¶ 22        McQuaid testified that he would have terminated 99 out of 100 people for having
       displayed the same behavior as plaintiff, but decided against terminating plaintiff because
       he was a valuable employee of C-WAM who had exhibited exemplary performance
       throughout his years with the company. Nevertheless, McQuaid knew that he had to answer
       to both Sayler and Banks, and that the ultimate decision as to what to do about the
       “mooning,” was not necessarily his to make. As a result, McQuaid informed plaintiff the next
       day that he, McQuaid, would have to “beg” for plaintiff’s job.
¶ 23        While these decisions were being made, Banks, Columbia’s chief executive officer, was
       on vacation and was not contacted about the “mooning” or about the executive management
       group’s decision to issue a formal warning letter to plaintiff as a disciplinary measure until
       he returned to New York. During the meantime, Hamilton drafted the Formal Warning and
       had it approved by McQuaid, Cooley, Price, and Sayler. After Sayler approved the Formal
       Warning on April 29, 2005, McQuaid and Hamilton delivered it to plaintiff.
¶ 24        The Formal Warning lowered the standard of “cause” for termination found in plaintiff’s
       December 19, 2000, Agreement and the October 31, 2001, Letter Agreement (which had
       adopted the original definitions for termination for “cause” or “good reason”). The standard
       now stated that plaintiff could be terminated if, at any point in the future, he violated any of
       the company’s standards in any aspect of his job. At the end of the Formal Warning, there
       was a space where McQuaid signed and dated the letter, and below it there was a sentence,
       which stated: “I have read and understand the contents of this warning,” below which
       plaintiff signed the letter. Plaintiff did not bargain for or negotiate the terms of the warning;
       he simply signed the Formal Warning.
¶ 25        The Formal Warning itself was a disciplinary action. It did not contain a promise or
       guarantee to plaintiff that he would be able to keep his job with the company. Within the
       letter, McQuaid and Hamilton stated that they “hope[d] that further disciplinary actions will
       not be necessary and that [plaintiff] continue on as a productive staff member of the
       investment team here at Columbia Wanger.”
¶ 26        After the Formal Warning was issued to plaintiff, he did not engage in any other

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       insubordinate or inappropriate conduct. Additionally, McQuaid sent plaintiff to New York
       to conduct a client meeting within a week after plaintiff had been given the Formal Warning.
       McQuaid testified that this meeting had been planned before the “mooning” and therefore
       it was necessary that plaintiff attend it, as he had not yet been terminated.

¶ 27               3. Banks Learns of “Mooning” and Has Plaintiff Terminated
¶ 28       On May 2, 2005, Banks returned from vacation to learn of the “mooning” that had
       occurred on April 27. Banks was Sayler’s direct superior, and since McQuaid reported
       directly to Sayler, Banks was two levels up from McQuaid. Banks asserted in his testimony
       that BOA was the umbrella company, and therefore, all the involved parties were employees
       of BOA. Therefore, since plaintiff was under McQuaid’s authority in the company’s
       hierarchy, he was also under the management of Banks. When Banks learned that McQuaid
       and the rest of the executive management group had only issued plaintiff a warning, he
       expressed his surprise that plaintiff had not been terminated on the spot, and stated that, “the
       course of action that they[, i.e., the executive management group] had intended to take was
       not an acceptable course of action.”
¶ 29       Banks then called McQuaid to set up a meeting and try to convince him of the need to
       terminate plaintiff. McQuaid asserted that plaintiff was a valuable employee and that
       terminating him would hurt both employee morale at C-WAM and business at the company
       as well, since he was C-WAM’s “bridge between its domestic and international teams.”
       Additionally, McQuaid testified that he told Banks that plaintiff might bring legal action to
       recover his earnout from the Contingent Payments, which he would forfeit if he were
       terminated for cause.
¶ 30       Banks contended that it was necessary to terminate plaintiff, despite the risks for the
       company, because plaintiff’s behavior was “egregious” and was harmful to the company and
       the leadership. Moreover, Banks testified that “not only would the Chicago leadership team
       lose all credibility, but so would the Columbia team in general,” if plaintiff were allowed to
       keep working for the company. McQuaid still did not budge from his position, although he
       did maintain that plaintiff’s insubordination did violate the employee manual and code of
       conduct, and that he could be terminated for cause.
¶ 31       Due to McQuaid’s determination to keep plaintiff employed with the company, Banks
       asserted that he had to take matters into his own hands. Banks decided to terminate plaintiff
       despite McQuaid’s and the rest of the executive management group’s insistence to the
       contrary. Banks asserted that the Formal Warning “meant nothing” to him and that it would
       be easy to replace plaintiff, because anybody could be replaced. However, when Banks
       informed McQuaid of his ultimate decision, McQuaid offered to terminate plaintiff himself,
       because he had a closer working relationship with plaintiff.
¶ 32       Although Banks himself did not read through the definitions for cause outlined in the C-
       WAM and BOA employee handbook and code of conduct until after plaintiff’s termination,
       he instructed Cooley to do so for him before determining if plaintiff could be fired for cause.
       Additionally, Banks had the company’s general counsel, Price, review the standards for cause
       in order to make sure that plaintiff’s termination for cause was legally acceptable.

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¶ 33      As a result of plaintiff’s termination, he forfeited his Contingent Payments, which would
       have vested a few months after his termination. The resulting money stayed within the BOA
       organization–including C-WAM and Columbia–when it vested. This appeal followed.

¶ 34                                       II. ANALYSIS
¶ 35                  A. Standard of Review for Summary Judgment Motions
¶ 36       Plaintiff contends that the circuit court’s grant of summary judgment in favor of
       defendants for counts I through VI, the issue of termination for “cause,” and for counts VIII
       through IX, the issue of breach of contract in regard to the Formal Warning, was improper.
       Defendants contend that summary judgment was proper because plaintiff was justly
       terminated for cause and the Formal Warning was not a contract. Summary judgment is
       proper where the pleadings, depositions, affidavits, admissions, and exhibits on file, when
       viewed in the light most favorable to the nonmoving party, show that there is no genuine
       issue of material fact and that the moving party is thus entitled to judgment as a matter of
       law. Kajima Construction Services, Inc. v. St. Paul Fire & Marine Insurance Co., 227 Ill. 2d
       102, 106 (2007).
¶ 37       On the other hand, a triable issue of fact exists where there is a dispute as to one of the
       material facts, or where a reasonable trier of fact might differ in drawing inferences from
       facts that are not in dispute. Bagent v. Blessing Care Corp., 224 Ill. 2d 154, 162-63 (2007).
       A defendant may nevertheless succeed on its motion for summary judgment by disproving
       the plaintiff’s case with uncontradicted evidence that would entitle it to judgment as a matter
       of law or by establishing that the plaintiff lacks sufficient evidence to prove an essential
       element of its cause of action. Argueta v. Krivickas, 2011 IL App (1st) 102166, ¶ 6. For
       appeals such as this, on the circuit court’s grant of defendant’s motion for summary
       judgment, this court will review the motion de novo. Abrams v. City of Chicago, 211 Ill. 2d
       251, 258 (2004).

¶ 38         B. Summary Judgment on Issue of Termination for “Cause” was Proper
¶ 39       Plaintiff contends that the circuit court erred in granting summary judgment in favor of
       defendants because a genuine issue of material fact exists as to whether plaintiff was
       terminated for “cause,” as set forth in the Plan. Defendants, on the other hand, maintain that
       plaintiff was properly terminated for cause because he engaged in misconduct that injured
       the company, which is grounds for termination for cause under plaintiff’s Agreement. The
       parties represented in this case disagree as to: the definition of “cause” in the employment
       agreement; whether an injury was caused by plaintiff’s conduct; and whether the evidence
       established the requisite “cause” for termination.
¶ 40       According to plaintiff’s Agreement, which was executed on December 19, 2000, he could
       be fired for “cause.” In the Agreement, “cause” for termination was defined as: “conviction
       of a felony, engaging in misconduct that injures the Company, performing your duties with
       gross negligence or any material breach of your fiduciary duties as an employee of the
       Company.” Plaintiff’s subsequent employment agreement, the Letter Agreement, executed
       on October 31, 2001, adopted the standard of cause put forth in the Agreement. However,

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       the Formal Warning lowered the standard for “cause,” to termination for “any future
       violation of the Company’s standards in any aspect of your job.” (Emphasis added.)
       Nevertheless, in assessing whether plaintiff’s behavior satisfied the requirements of
       termination for cause, one only needs to look to the Agreement, which was in effect prior to
       the “mooning.”
¶ 41        Plaintiff asserts that the circuit court erred when it determined, as a matter of law, that
       plaintiff’s conduct injured the company. Defendants, on the other hand, contend that
       plaintiff’s misconduct directly injured the company by: impugning the status and credibility
       of the company’s management; disregarding company interests in maintaining an orderly
       work environment; wasting the company’s resources in addressing the “mooning” and its
       aftereffects; and causing the company to terminate a financially valuable employee
       (plaintiff). Both parties derive their understanding of injury from the Agreement, but diverge
       in regard to their understanding of the terms of the Agreement.
¶ 42        In order to understand the intent of a contract, the court must consider the document in
       its entirety and give the language contained therein its plain and ordinary meaning. Salce v.
       Saracco, 409 Ill. App. 3d 977, 981 (2011). Moreover, under Illinois law, the contract must
       be construed as a whole, by viewing each component in light of the others. Gallagher v.
       Lenart, 226 Ill. 2d 208, 233 (2007) (citing Board of Trade v. Dow Jones & Co., 98 Ill. 2d
       109, 122-23 (1983)).
¶ 43        In Illinois, employers have a right to expect a certain standard of conduct from their
       employees in matters that directly concern their employment. Lachenmyer v. Didrickson, 263
       Ill. App. 3d 382, 388 (1994). Our legislature defines a violation of this standard of conduct,
       or “misconduct,” as “the deliberate and willful violation of a reasonable rule or policy of the
       employing unit, governing the individual’s behavior in performance of his work, provided
       such violation has harmed the employing unit or other employees.” 820 ILCS 405/602 (West
       2010). Moreover, an employer does not need to present direct evidence of the existence of
       a reasonable rule or policy; instead, a court can simply determine that such a policy exists
       through a common-sense realization that some behavior “intentionally and substantially
       disregards [the] employer’s interest.” Lachenmyer, 263 Ill. App. 3d at 388.
¶ 44        Plaintiff contends that “misconduct that injures the Company,” should be construed to
       mean serious injury to the company. Plaintiff asserts that this is the case because the other
       actions mentioned by the Agreement as justifying termination for cause appear to be very
       serious transgressions–conviction of a felony, material breach of fiduciary duties (which
       defendants assert are the highest form of duty an employee can owe to an employer), or
       performing your duties with gross negligence. Nevertheless, this does not help to explain
       why the “mooning” was not just as serious: a serious act of misconduct that injures the
       company. Therefore, using a commonsense interpretation of plaintiff’s behavior in
       “mooning” Sayler and McQuaid, in accordance with Lachenmyer, it is clear that plaintiff’s
       insubordinate behavior injured the company.
¶ 45        According to plaintiff’s Agreement, his duties included “observ[ing] all rules and
       regulations which the Company may establish governing the conduct of its business and that
       of its affiliates.” The BOA employee handbook provided additional information regarding


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       the company’s rules and regulations, which plaintiff and other employees of BOA were
       required to follow, and plaintiff acknowledged his receipt of said handbook and compliance
       with its policies by signing a form of acknowledgment in 2004. This handbook stated that
       “insubordination” and “conduct unbecoming an associate” were prohibited and that:
            “Disruptive, unruly or abusive behavior by associates in the workplace *** is not
            tolerated. Inappropriate conduct includes verbal or physical threats, fights and obscene
            or intimidating behavior, as well as any other abusive conduct. *** Associates who
            violate any provision of this policy are subject to disciplinary action up to and including
            immediate termination of employment.”
       Plaintiff violated the rules and regulations in the handbook by behaving in a disruptive,
       unruly, and abusive manner–“mooning” Sayler and McQuaid and informing Sayler that he
       was not welcome in that office and that plaintiff hoped he would never return to the Chicago
       office–that also may be considered obscene behavior. Therefore, according to the Agreement,
       plaintiff violated his duties as an employee of the company.
¶ 46        Plaintiff contends that the “mooning” had nothing to do with “performing his duties.”
       Yet, not only do the Agreement and employee handbook state that plaintiff’s actions violated
       his “duties,” but the context of the situation furthers the “commonsense realization”
       (Lachenmyer, 263 Ill. App. 3d at 388) that he was performing his duties; interacting with his
       superiors while at his place of employment.
¶ 47        There is no ambiguity in these facts. The clear interpretation of plaintiff’s behavior is that
       it was insubordinate, disruptive, unruly and abusive. Thus, the behavior caused injury to the
       company by undercutting the authority of plaintiff’s bosses–including Banks, Sayler, and
       McQuaid–and disregarding company policies, calling for: the observation of all rules and
       regulations which the company establishes to govern the conduct of its business and that of
       its affiliates, as stipulated in the Agreement.
¶ 48        In Lachenmyer, the court determined that the plaintiff’s action of throwing a work paper
       folder at his direct supervisor constituted willful misconduct. Id. at 384-87. A strikingly
       similar standard of misconduct was also noted in a case construing unemployment benefits,
       where the court concluded that misconduct such as abusive and offensive language directed
       at superiors within the employee’s company qualified as misconduct that injures the
       company and thus justified termination for cause. Messer & Stilp, Ltd. v. Department of
       Employment Security, 392 Ill. App. 3d 849, 859 (2009) (citing Yoldash v. Review Board of
       the Indiana Employment Security Division, 438 N.E.2d 310, 314 (Ind. Ct. App. 1982)). As
       a result, it adheres to commonsense logic that plaintiff’s behavior in “mooning” his superiors
       would either fall under the same category or be regarded as more severe misconduct than
       using profanity in speaking to one’s superiors at work.
¶ 49        The clear conclusion here is that plaintiff was justly terminated for cause: for engaging
       in misconduct that injures the company. As such, plaintiff’s misconduct, which injured the
       company, is sufficient to justify his termination for cause. Therefore, we hold that plaintiff
       does not state a genuine issue of material fact, where a reasonable trier of fact might differ
       in drawing inferences from facts that are not in dispute. Bagent v. Blessing Care Corp., 224
       Ill. 2d 154, 163-64 (2007). As such, plaintiff was justifiably terminated for cause because his


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       act of “mooning” Sayler and McQuaid satisfied the standard for misconduct that injures the
       company. For the foregoing reasons, we affirm the grant of summary judgment in favor of
       defendants and we need not address the issue of gross negligence.

¶ 50                           C. Plaintiff’s Breach of Contract Claim
¶ 51        Plaintiff also asserts that the circuit court erred in granting summary judgment in favor
       of defendants because a genuine issue of material fact exists concerning his breach of
       contract claim. Plaintiff argues that a question of material fact remains as to whether
       defendants breached a contractual agreement with plaintiff when they terminated him for
       cause after issuing him a Formal Warning. Defendants respond that the Formal Warning was
       not a contract and, thus, plaintiff presents no issue of material fact because one cannot sue
       for breach of contract if no contract existed.
¶ 52        Plaintiff contends that the Formal Warning was a contract, which provided that plaintiff
       would retain his employment with the company contingent on the fact that he did not commit
       any further violations of the company’s standards in any aspect of his job. Plaintiff maintains
       that the Formal Warning was a contract because it contained a promise clear enough for
       plaintiff to believe that an offer had been made. Defendants respond that the Formal Warning
       was not a contract, but was simply a disciplinary letter that lowered the standard of cause for
       termination if plaintiff did commit any future violations of the company’s standards.
       Defendants assert that the Formal Warning did not prevent terminating plaintiff for the
       “mooning” on April 27, 2005, because the language in the Formal Warning did not contain
       any specific promises of future employment.
¶ 53        According to Duldulao v. Saint Mary of Nazareth Hospital Center, a policy statement
       may create an enforceable contract if the traditional requirements for the formation of a
       contract are present: (1) the language of the policy statement must contain a promise which
       is clear enough that the employee would reasonably believe that an offer had been made and
       (2) the statement must be disseminated to the employee in such a manner that the employee
       is aware of its contents and reasonably believes it to be an offer. Duldulao v. Saint Mary of
       Nazareth Hospital Center, 115 Ill. 2d 482, 490 (1987). Whether a document constitutes a
       clear and unambiguous contract is a question of law, and courts must interpret the plain
       language of the document to determine whether it contains a promise clear enough for the
       employee to reasonably believe that an offer has been made. C.A.M. Affiliates, Inc. v. First
       American Title Insurance Co., 306 Ill. App. 3d 1015, 1020 (1999); Doyle v. Holy Cross
       Hospital, 186 Ill. 2d 104, 111 (1999).
¶ 54        In Duldulao, the Illinois Supreme Court determined that the plaintiff’s employee
       handbook constituted an enforceable contract. The court noted that the language of the
       handbook contained a promise clear enough that the employee would reasonably believe that
       an offer had been made. Furthermore, the handbook was disseminated to the plaintiff in such
       a manner that she was aware of its contents and reasonably believed it to be an offer.
       Duldulao, 115 Ill. 2d at 490. However, in Duldulao, the plaintiff’s employee handbook
       specifically stated that “ ‘[a]t the end of 90 calendar days since employment the employee
       becomes a permanent employee and termination contemplated by the hospital cannot occur


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       without proper notice and investigation.’ ” (Emphasis in original.) Id. at 490-91.
¶ 55       On the contrary, the Formal Warning, which was disseminated to plaintiff, did not have
       such specific and mandatory language constituting an offer. The Formal Warning outlined:
       plaintiff’s behavior, i.e., the “mooning,” which had propelled the executive management
       team to issue the letter; the seriousness of the matter and the company’s policies that plaintiff
       had violated; the fact that plaintiff’s behavior was unacceptable and the lowered standard of
       “cause” for termination; outlets for plaintiff to explore if he thought his behavior were a
       result of any mental imbalance; and McQuaid’s “hope” that further disciplinary actions
       would not be necessary and that plaintiff would be able to continue working for the company.
¶ 56       At no point did the Formal Warning outline a specific course of action for dealing with
       potential disruptive, unruly, or abusive behavior in the future; it only stated that if there was
       any future violation of the company’s standards in any aspect of plaintiff’s job, he would be
       subject to further disciplinary action, up to and including termination. The Formal Warning
       did not contain language nearly as specific and mandatory as the contractual language in the
       employment handbook in Duldulao, which also stated that, “ ‘three warning notices within
       a twelve-month period are required before an employee is dismissed.’ ” (Emphasis in
       original.) Id. at 491. Moreover, the Formal Warning contained no offer or promise of
       continued employment, only a “hope,” on McQuaid’s behalf, that no further disciplinary
       action would need to be taken and that plaintiff would remain an employee of the company.
¶ 57       There was also no consideration involved in the drafting of the Formal Warning;
       plaintiff, McQuaid, and Hamilton did not negotiate the terms of the letter, plaintiff simply
       signed the letter, attesting to the fact that he had “read and underst[ood] the contents of this
       warning.” However, plaintiff maintains that since he and McQuaid both signed the Formal
       Warning, it must have been a contract. Nevertheless, according to Rudd v. Danville Metal
       Stamping Co., the requirement that an employee sign a document, in order to acknowledge
       his or her receipt of that document, does not transform the document into a contract. Rudd
       v. Danville Metal Stamping Co., 193 Ill. App. 3d 1009, 1010-12 (1990).
¶ 58       At no point was there any discussion of the terms of the Formal Warning or any
       opportunity for plaintiff to insert his desires or demands as to the contents of the letter, as
       would be the case if it were a contract and not simply a warning letter. Moreover, although
       plaintiff contends that McQuaid testified that the Formal Warning signified his “word,” and
       that his word signified a “promise,” plaintiff fails to acknowledge the important fact that
       there was no use of the word “promise” in the Formal Warning, nor was there any oral
       contract for continued employment between McQuaid and plaintiff. Furthermore, at no point
       did the letter state that it was a contract; to the contrary, it was explicitly called a warning
       and not a contract.
¶ 59       For the foregoing reasons, this court finds that summary judgment in favor of defendants,
       in regard to plaintiff’s breach of contract claims, is proper because plaintiff does not present
       any genuine issue of material fact. Despite plaintiff’s contentions to the contrary, the Formal
       Warning was not a contract. Therefore, since there was no contract, there can be no breach
       of contract, and thus, there is no genuine issue of material fact in regard to plaintiff’s breach
       of contract claims. Since we affirm the decision of the circuit court in granting summary


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       judgment in favor of defendants, we need not consider plaintiff’s claim that the trial court
       improperly struck his jury demand.

¶ 60                                  III. CONCLUSION
¶ 61      For the foregoing reasons, the judgment of the trial court is affirmed.

¶ 62      Affirmed.




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