"Termination." This section addresses the issues of "voluntary resignation" and "company-initiated termination." The relevant language of this section provides that in the event of voluntary resignation, plaintiff "will be expected to give FMC at least 30 days notice." Although the agreement contains no reciprocal notice provision in the event of a company-initiated termination, it does provide that FMC will pay for the costs of returning plaintiff, his family, and his belongings to plaintiff's point of origin if FMC initiates the termination.
Attempting to circumvent the clear import of this language, plaintiff offers two equally meritless arguments. First, plaintiff argues that because he is "expected" to give thirty days notice in the event of voluntary resignation under the agreement, he could not ever truly terminate his employment "at will." This interpretation of the agreement, however, not only strains logic, but also is at odds with clearly established Illinois law. See Vitkauskas, 157 Ill. App. 3d at 320, 509 N.E.2d at 1387, 109 Ill. Dec. 373 (termination "upon notice" creates legal relationship of employment at will). Under the agreement, plaintiff is merely "expected" to give thirty days notice; he is not "required" to do so. The law recognizes a difference between expectations and obligations. See, e.g., Lukasik, 116 Ill. App. 3d at 345, 452 N.E.2d at 59 (noting that "may" does not mean "shall").
Following this same line of reasoning, plaintiff also contends that the absence of a reciprocal notice provision in the event of a company-initiated termination demonstrates that FMC's right to terminate him is "not unconditional." Apparently, plaintiff infers from the silence of the agreement on what, if any, notice FMC is "expected" to give in the event it chooses to terminate plaintiff that FMC cannot terminate plaintiff without notice. Plaintiff, however, fails to cite any authority which supports this quantum leap in logic. We remain unpersuaded that there is any such authority.
Accordingly, we conclude that the 1984 letter agreement did not guarantee plaintiff a term of employment for at least five years. Instead, it contemplated that if the employment relationship was mutually satisfactory for at least five years and plaintiff's assignment to Johannesburg lasted that long, the 1984 letter agreement would govern the terms and conditions of plaintiff's assignment. Based on that interpretation of the plain language of the 1984 letter agreement, we grant FMC's motion for judgment on that portion of Count I which seeks relief for FMC's alleged breach of a five-year employment agreement.
2. Breach Arising From Pre-Termination Reduction of Compensation
In Count I, plaintiff also complains of another act of breach by FMC. Specifically, plaintiff alleges that prior to his termination, FMC unilaterally altered his compensation in violation of the 1984 letter agreement. See Complaint at para. 18. Though plaintiff makes this allegation within the body of his complaint, he does not request damages as a result of this second act of breach in his prayer for relief.
In its motion for judgment on the pleadings and supporting memoranda, FMC contends that plaintiff has belatedly offered this theory because he senses the weakness of his theory based on a purported five-year employment contract. According to FMC, plaintiff's failure to request damages for this alleged second act of breach renders this portion of Count I, as it stands, legally deficient. As a result, FMC argues, this Court is not foreclosed from entering judgment on Count I in its entirety.
We disagree. As we noted at the outset, for purposes of this motion, plaintiff's allegation regarding FMC's pretermination reduction of his compensation, like all well-pleaded allegations of plaintiff's complaint, must be accepted as true. See Susman, 517 F. Supp. at 931. This Court cannot dismiss Count I in its entirety unless plaintiff can prove no set of facts which would support his allegation that FMC altered his compensation in violation of the 1984 letter agreement. See Susman, 517 F. Supp. at 934.
Plaintiff's mere failure to request damages for this second act of breach does not render this portion of his claim legally unactionable. On the contrary, existing authority suggests that if plaintiff can prove his allegations, FMC may be liable to him for unilaterally reducing his compensation. See Bartinikas v. Clarklift of Chicago North, 508 F. Supp. 959, 961 (N.D.Ill. 1981) (although employer could have discharged employee for rejecting a proposed modification of an employment agreement, employer could not enforce terms of its modification ex parte).
While plaintiff probably should have pleaded his two separate claims of breach in two separate counts, his failure to do so does not entitle FMC to judgment on the latter of the two claims alleged in Count I. Nevertheless, in the interests of keeping a clear record, we dismiss all of Count I, as it now stands, and we give plaintiff leave to amend his complaint for the limited purpose of pleading a claim for this second act of breach arising out of FMC's alleged reduction of plaintiff's compensation prior to his termination. We admonish plaintiff, however, that in the event he amends his complaint, he must explicitly certify that the amount in controversy exceeds the jurisdictional amount, exclusive of interest and costs. If plaintiff cannot so certify to this Court, then his action will be dismissed for lack of subject matter jurisdiction.
B. Count II - Wrongful or Retailatory Discharge
In Count II of his complaint, plaintiff purports to allege a cause of action for "retaliatory or wrongful discharge."
Plaintiff specifically claims that FMC terminated him in retaliation for refusing to agree to amend the terms and conditions of his employment. See Complaint at para. 70. In substance, this count essentially reincorporates the allegations which form the basis for the breach of contract claim in Count I.
In order to state a viable claim for retaliatory discharge under Illinois law, an employee must plead two essential elements: (1) that his employer discharged him in retaliation for his activities and (2) that the discharge was in contravention of a clearly mandated public policy. See Palmateer v. International Harvester Co., 85 Ill. 2d 124, 134, 421 N.E.2d 876, 881, 52 Ill. Dec. 13 (1981); Shores v. Senior Manor Nursing Home, Inc., 164 Ill. App. 3d 503, 505, 518 N.E.2d 471, 473, 115 Ill. Dec. 946 (5th Dist. 1988); Wheeler v. Caterpillar Tractor Co., 123 Ill. App. 3d 539, 543, 462 N.E.2d 1262, 1265, 78 Ill. Dec. 908, rev'd on other grounds, 108 Ill. 2d 502, 485 N.E.2d 372, 92 Ill. Dec. 561, cert. denied, 475 U.S. 1122, 90 L. Ed. 2d 187, 106 S. Ct. 1641 (1986). In its motion for judgment on Count II of plaintiff's complaint, FMC contends that plaintiff has not pleaded facts to establish the second element of a claim for retaliatory discharge. Without the benefit of authority or analysis, plaintiff summarily asserts that because he is not an "at will" employee, he is not required to plead that his discharge contravened a clearly mandated public policy.
Plaintiff's analysis, however, is fatally flawed for two reasons. First, we have already concluded that plaintiff was an employee at will. Second, violation of a clearly mandated public policy is the very heart of a cause of action for retaliatory discharge under Illinois law. That such an allegation is a prerequisite to stating a claim for retaliatory discharge in Illinois is clearly established. See Price v. Carmack Datsun, Inc., 109 Ill. 2d 65, 67, 485 N.E.2d 359, 360, 92 Ill. Dec. 548 (1985) (a cause of action for retaliatory discharge is recognized only when the employee's discharge violates a clearly mandated public policy); Barr v. Kelso Burnett Co., 106 Ill. 2d 520, 527, 478 N.E.2d 1354, 1357, 88 Ill. Dec. 628 (1985) (validity of complaint alleging claim for retaliatory discharge is tested by determining whether discharge violated a clearly mandated public policy); Palmateer, 85 Ill. 2d at 133, 421 N.E.2d at 880, 52 Ill. Dec. 13) (foundation of the tort of retaliatory discharge lies in the protection of public policy). Thus, plaintiff's failure to allege facts which establish that his discharge violated a clearly mandated public policy warrants dismissal of Count II of his complaint.
For the reasons outlined in this opinion, FMC's motion for judgment on Count I of plaintiff's complaint is granted in part and denied in part. The Court grants FMC's motion for judgment on that portion of Count I which seeks relief for FMC's alleged breach of a five-year employment agreement and dismisses that portion of the claim with prejudice. The Court denies FMC's motion for judgment on that portion of Count I which seeks relief for FMC's alleged breach of the 1984 letter agreement prior to plaintiff's termination; however, because plaintiff has neglected to request damages for this latter act of alleged breach and has combined two claims in Count I, we dismiss the remaining portion of Count I without prejudice. Plaintiff is granted leave to file an amended complaint for the limited purpose of repleading this claim for FMC's alleged pre-termination breach of the 1984 letter agreement, provided that the amended complaint contains the requisite jurisdictional certification as to the amount in controversy, exclusive of interest and costs; otherwise, plaintiff faces dismissal of his claim for lack of subject matter jurisdiction. Finally, the Court grants FMC's motion for judgment on Count II of plaintiff's complaint and dismisses that claim with prejudice.
IT IS SO ORDERED.
Dated: May 19, 1989