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June 30, 1995



Presiding Justice McNAMARA delivered the opinion of the court: Egan and Zwick, J.j., concur.

The opinion of the court was delivered by: Mcnamara

PRESIDING JUSTICE McNAMARA delivered the opinion of the court:

Plaintiffs, Charles Prettyman, Marshall Shifrin, and George Bravos, appeal from an order of the trial court granting summary judgment in favor of defendant, Commonwealth Edison, plaintiffs' former employer. Plaintiffs brought this action seeking compensation for vacation time which they had allegedly accrued prior to being terminated by defendant but for which they contended they were not paid. Plaintiffs alleged in their complaint that defendant's vacation policy violated section 5 of the Illinois Wage Payment and Collection Act (820 ILCS 115/5 (West 1992))(Act). The trial court found that no genuine issues of material fact existed so as to preclude summary judgment and that the question whether defendant's vacation policy complied with the Act was one of law. The court held that defendant's policy complied with the Act and that plaintiffs were compensated for all the vacation time to which they were entitled. Plaintiffs appeal.

The relevant facts are as follows. Plaintiffs were long-term management employees of defendant who were terminated in September 1992 as part of an extensive reduction of defendant's management work force. Defendant's written vacation policy for its management employees was incorporated into what defendant commonly refers to as "General Company Order No. 39" (GCO No. 39), and in relevant part provides as follows:

"1. In each calendar year, all regular employees who were on the payroll and under age 70 at the close of the last day of the preceding calendar year shall be entitled to vacations with pay in accordance with the provisions of this Order.

2. A regular employee will be granted a regular vacation of two calendar weeks after completing the first year of service. However, a management employee will be eligible for a vacation of one calendar week after completing six months of continuous service, this vacation to be taken prior to the first year service anniversary date. Thereafter, a regular vacation of two calendar weeks in each calendar year will be allowed.

11. A regular employee, eligible for a vacation with pay, whose employment by the Company is terminated before taking the entire vacation to which he or she is eligible during the current calendar year, shall receive a vacation allowance equal to his or her basic hourly rate for the number of eligible days in excess of the number of days of vacation already taken during the current calendar year ***."

In addition to the two weeks per calendar year of vacation time, employees received extra vacation days as their number of years of service increased. Thus, after 25 years of service, as in plaintiffs' case, an employee would receive the basic 10-day allotment plus 20 additional vacation days for a total vacation allotment of 30 days, the maximum allowable under GCO No. 39. In 1992, plaintiff Prettyman had used 14 of his 30 vacation days, Shifrin 11, and Bravos 27. Upon termination, defendant paid Prettyman $3,611.08 for his 16 unused vacation days, Shifrin $4,292.54 for his 19 unused days, and Bravos $779.54 for his three unused days.

At the close of the hearing on defendant's motion for summary judgment, the trial court found that defendant's vacation policy does not operate on an earn-in-arrears basis but is forward-looking in that defendant grants its employees their respective vacation allowances for a particular year on January 1 of that year. The court determined that there was no factual dispute as to the existence and application of defendant's vacation policy to plaintiffs, but that the sole issue was whether the policy improperly denied employees payment for accrued vacation time, in violation of section 5 of the Act. This, the court held, was exclusively a legal question appropriate for determination on a motion for summary judgment. The court found that defendant's policy complied with the Act's requirements since it did not require plaintiffs to forfeit any of their earned vacation benefits but, in fact, allowed them to keep all of the allotted vacation time for 1992 which they received on January 1 of that year (less used vacation days), despite the fact that they only worked for three-quarters of the year. The court entered summary judgment for defendant.

On appeal, plaintiffs contend that the trial court misconstrued how defendant's vacation policy operates in practice. They argue that the policy actually operated to deprive them of their pro rata share of vacation benefits earned at the time of termination. Accordingly, entry of summary judgment for defendant was improper.

Although the use of summary judgment aids in the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and should therefore be used only when the resolution of a case hinges on a question of law and the moving party's right to judgment is clear and free from doubt. ( Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867, 95 Ill. Dec. 305.) Summary judgment is proper where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (735 ILCS 5/2-1005 (West 1992); Green v. International Insurance Co. (1992), 238 Ill. App. 3d 929, 605 N.E.2d 1125, 179 Ill. Dec. 111.) In deciding a motion for summary judgment, the trial court's sole function is to determine whether issues of material fact exist; it is not to try those issues. ( Green, 238 Ill. App. 3d at 933, 605 N.E.2d at 1125.) The court must construe the record before it most strictly against the movant and in favor of the nonmovant and draw all reasonable inferences in favor of the nonmovant. ( Green, 238 Ill. App. 3d at 933, 605 N.E.2d at 1125.) The trial court's grant of summary judgment is subject to de novo review on appeal. Wiseman-Hughes Enterprises, Inc. v. Reger (1993), 248 Ill. App. 3d 854, 617 N.E.2d 1310, 187 Ill. Dec. 589; Myers v. Health Specialists, S.C. (1992), 225 Ill. App. 3d 68, 587 N.E.2d 494, 167 Ill. Dec. 225.

Plaintiffs contend that defendant's vacation policy violates section 5 of the Act, which in relevant part states:

"Unless otherwise provided in a collective bargaining agreement, whenever a contract of employment or employment policy provides for paid vacations, and an employee resigns or is terminated without having taken all vacation time earned in accordance with such contract of employment or employment policy, the monetary equivalent of all earned vacation shall be paid to him or her as part of his or her final compensation at his or her final rate of pay and no employment contract or ...

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