expectations of the parties. Id. Plaintiff has not specifically alleged a breach of the covenant in his complaint.
Plaintiff argues in his brief that defendant exercised its discretion for an improper motive in removing Advantis sale commissions from the Plan. He states that he was not paid because the price was deeply discounted and defendant thought it would lose money on the sale. A claim of a breach of good faith requires that an exercise of discretion be out of step with the expectations of the parties. Id. at 1444. In the present case, plaintiff was informed of the terms of the Plan. He knew that the Vice President could exercise his or her discretion to remove unique sales. As stated above, O'Brien employed the facts surrounding the Advantis sale and properly utilized his discretion to remove the sale from the Plan. The action of defendant did not diverge from the expectations of the parties, therefore there was no breach of the covenant of good faith.
Plaintiff received all compensation owed to him at the time he resigned from defendant. He is not entitled to commissions under the Plan. Accordingly, plaintiff's motion for summary judgment on Count I of plaintiff's complaint must be denied and defendant's motion for summary judgment on Count I of plaintiff's complaint must be granted.
II. Wage Payment and Collection Act (Count II)
Count II of plaintiff's complaint alleges that defendant is in violation of the Illinois Wage Payment and Collection Act (Collection Act), 820 ILCS 115/1 et seq., since it has failed to pay him the commission he would have received had the Advantis sale not been taken off the Plan. The Collection Act regulates wage payment and is primarily concerned with the prompt and full payment of wages due workers at the time of separation from employment. Conlon-Moore Corp. v. Cummins, 28 Ill. App. 2d 368, 373, 171 N.E.2d 676, 679 (1st Dist. 1960). Commissions are considered wages. 820 ILCS 115/2. Defendant argues that it does not owe any commission to plaintiff regarding the Advantis sale and thus it did not violate the Collection Act. Plaintiff failed to address this issue in his reply to defendant's motion for summary judgment.
As stated above, plaintiff cannot support an argument that the Plan was a contract or that defendant owes him any commissions from the Advantis sale. Since plaintiff is not due any wages from defendant, he cannot make a claim under the Collection Act. Therefore, defendant's motion for summary judgment on Count II of plaintiff's complaint is granted.
III. Attorneys Fees in Wage Actions Act (Count III)
Plaintiff's Count III asks for attorneys' fees pursuant to Illinois Attorneys Fees In Wage Actions Act (Attorneys Fees Act). 705 ILCS 225/1. The Attorneys Fees Act provides for the recovery of reasonable attorneys' fees in actions by employees seeking to obtain wages that are owed the employee once the employee obtains a decision by a court or jury that wages are indeed owed. Id. Plaintiff failed to address this issue in his reply to defendant's motion for summary judgment. As stated above, since plaintiff is not due any wages or commission from defendant he cannot support a claim for attorneys' fees under the Attorneys Fees Act. Accordingly, defendant's motion for summary judgment on Count III must be granted.
Based on the above stated reasons, plaintiff's motion for summary judgment on Count I is DENIED and defendant's motion for summary judgment on all three counts of plaintiff's complaint is GRANTED. This case is dismissed in its entirety. All other pending motions are moot.
JAMES F. HOLDERMAN
United States District Judge
DATED: December 23, 1996