The opinion of the court was delivered by: Shadur, District Judge.
August Arado ("Arado") charges General Fire Extinguisher
Corporation ("General") terminated him in violation of the Age
Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621-634.
In addition to that Count I cause of action (captioned
"Age Discrimination Claim"), Arado's Complaint asserts two
unlabeled claims (Counts II and III), each of which realleges
(via incorporation by reference) all of Count I's 17 paragraphs
of allegations. General now moves under Fed.R.Civ.P. ("Rule") 56
for "partial" summary judgment as to Complaint Counts II and III
and portions of the prayer for relief in Count I. For the reasons
stated in this memorandum opinion and order, the motion is
granted in part and denied in part.
Complaint Count I charges Arado was fired because of his age,
in violation of ADEA. It prays for actual, compensatory,
consequential and liquidated damages as well as attorneys' fees.
Count II charges General's award of only four weeks' severance
pay to Arado was an "intentional and willful" violation of
General's "standard practice" of awarding at least one week's pay
for each year of employment. Count III charges Haulman's letter
of recommendation is actually more harmful than helpful to Arado,
so that Arado has not been able to use it and has suffered a
"loss of his business reputation."
General seeks summary judgment as to Counts II and III. It also
asks for what it terms a "partial" summary judgment as to Count
I's prayers for compensatory, consequential and liquidated
1. Count I
General's motion as to Count I simply misapprehends the purpose
of Rule 56.*fn3 As this Court has often repeated (most recently in
Newman-Green, Inc. v. Alfonzo-Larrain, 612 F. Supp. 1434, 1439
(N.D.Ill. 1985)), Rules 56(a) and 56(b) simply do not permit the
piecemealing of a single claim or the type of issue-narrowing
sought here by General. This Court's colleague Judge Susan
Getzendanner has just concurred in that analysis in Capitol
Records, Inc. v. Progress Record Distributing, Inc., 106 F.R.D.
25 (N.D.Ill. 1985), explaining that despite Rule 56(a)'s
reference to "all or any part" of a claim, the Rule authorizes
only the granting of appealable "judgments" disposing of entire
As Capitol Records and this Court's consistent opinions teach,
Rule 56(d)'s issue-narrowing provision operates only in the wake
of an unsuccessful (and proper) motion under Rule 56(a) or 56(b).
Capitol Records, 106 F.R.D. at 29; SFM Corp. v. Sundstrand Corp.,
102 F.R.D. 555, 558-59 (N.D.Ill. 1984). Rule 56(d)'s purpose is
merely "to salvage whatever constructive results have come from
the judicial effort" to resolve a full-fledged summary judgment
motion. 6 Pt. 2 Moore, Moore's Federal Practice ¶ 56.20[3.-3], at
56-1223. There is no such thing as an independent motion under
Accordingly General's Count I motion is denied. That denial is
(of course) without prejudice.
2. Count II
No written employment contract existed between Arado and
General, and Arado does not claim an express oral contract
(Rynar, 560 F. Supp. at 624) embodying a severance pay obligation.
Those uncontested facts obviously preclude the first of the
Nor has Arado provided any basis for finding General otherwise
adopted a personnel policy that entailed a mutuality of
obligation. In fact, Arado has not even asserted a mutually
binding policy exists. Instead Complaint Count II ¶ 18 alleges
(but without the necessary Rule 56(e) evidentiary support)
General had a "standard practice" of awarding severance pay
ranging between one week's and one month's pay for each year of
But Rynar, 560 F. Supp. at 625 and Carter v. Kaskaskia Community
Action Agency, 24 Ill.App.3d 1056, 332 N.E.2d 574, 576 (5th Dist.
1974), on which Rynar relied, make it clear a personnel policy
does not take on contractual status unless at a minimum it:
1. is communicated to the employees;
2. is accepted by the employees; and
3. places obligations on both the employer and the
It is profitable to compare (or contrast) the Rynar and Carter
treatment of those factors with Arado's claimed situation.
As to the first element, in each of Rynar and Carter the policy
was communicated to the employees in writing. As for the second
factor, the cases reached opposite results:
1. In Carter the policy was deemed accepted by the
employees because (a) the employer reviewed it with
them at the time it was implemented (24 Ill.App.3d at
1058-59, 322 N.E.2d at 576) and (b) the employees
continued to work after getting that explanation.
2. In Rynar the plaintiff employee was found not to
have accepted the policy as a contract because he had
not been informed of or reviewed its terms until
several months after he began working. Moreover,
modifications in the policy were never presented to
employees for their review or approval (560 F. Supp.
Finally, both cases found the mutuality-of-obligation
requirement satisfied by an employee undertaking that provided
consideration for the employer's severance pay obligation in the
written personnel policy. In each instance the employee was
obligated to provide adequate notice to the employer before
resigning. Rynar, 560 F. Supp. at 625; Carter, 24 Ill.App.3d at
1059, 322 N.E.2d at 576.
By contrast, Arado meets none of the three criteria. He has
neither asserted nor offered evidence tending to show
communication or acceptance or mutuality of obligation as to
General's asserted severance pay policy.
As a threshold matter, the very existence of a "policy" poses
a real problem. Haulman testified severance pay was a purely
discretionary matter left to his sense of what was "fair"
(Haulman Dep. 59-60). Arado bases his counter-assertion of a
"policy" entirely on inferences from amounts actually paid to
terminated employees. But even aided by the required favorable
inferences, Arado has not defined the "policy" with enough
precision to render that term appropriate. Indeed Arado Mem. 9
puts it in terms of severance pay varying "between one month's
pay and one week's pay for each year an employee was employed
Even if this Court assumes arguendo that formulation could be
termed a "policy,"*fn7 the record is utterly bereft of any
hint that policy was ever communicated to or reviewed with the
employees.*fn8 And finally there is no whisper of any evidence as to
any obligation shouldered by the employees in return for
General's asserted promise of severance pay. Under Illinois law
the lack of such an obligation renders the policy a gratuity with
no binding effect on the employer. Sargent v. Illinois Institute
of Technology, 78 Ill.App.3d 117, 121-22, 33 Ill.Dec. 937,
397 N.E.2d 443, 446 (1st Dist. 1979). In short, Arado has failed
utterly to raise a factual issue as to the existence of any
enforceable severance pay claim.
3. Count III
Count III is simply not cognizable under Illinois law. Illinois
does recognize a tort of injury to business reputation where oral
or written statements call into question one's qualifications or
competence to perform his or her work. 33A I.L.P. Slander & Libel
§ 27. But that cause of action is a form of defamation and thus
requires publication of the injurious statements. Libert v.
Turzynski, 129 Ill.App.2d 146, 150, 262 N.E.2d 741, 743 (1st
Dist. 1970). Arado Complaint Count III ¶ 18 admits he never used
Haulman's letter, so there has been no publication.
Even apart from that fatal defect, it is quite difficult to
interpret the unambiguously favorable language of the letter as
being in any way defamatory. Thus Count III cannot survive
summary judgment viewed as a defamation claim. And if it purports
instead to allege a different kind of tort, no such cause of
action exists under Illinois law.
It may be Arado rather intended to state a contract-type claim
in Count III.*fn9 Any such claim would have to be founded on
1. to provide Arado with a letter of
2. to write the letter in a highly complimentary
(and not just a favorable) fashion.*fn10
Arado would fare no better in the realm of contract than in the
realm of tort. He provides no shred of legal or factual support
for the existence of such obligations.
However Count III is viewed, it is insufficient in law. Here
too General is entitled to summary judgment.
There is no genuine issue of material fact (or indeed law) as
to Counts II and III. General is entitled to a judgment as a
matter of law as to those Counts. Accordingly Counts II and III
are dismissed with prejudice. General's motion as to Count I is
denied without prejudice.*fn11