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KAY v. FIRST CONTINENTAL TRADING

June 17, 1997

GARY MARCUS KAY, Plaintiff,
v.
FIRST CONTINENTAL TRADING, INC., et al., Defendants.



The opinion of the court was delivered by: SHADUR

 Gary Kay ("Kay") has sued both his ex-employer First Continental Trading, Inc. ("First Continental") and a credit reporting agency, asserting several claims stemming from the termination of his employment within a very short time (just 19 days) after Kay was hired at the end of October 1994. Although the more complex questions posed by Kay's various claims relate to both defendants' alleged violations of the federal Fair Credit Reporting Act, his Complaint Count VI is a state law claim against First Continental alone arising out of what he calls his "wrongful termination."

 With discovery on that score having been completed (at least to the extent required to deal with a Fed. R. Civ. P. ("Rule") 56 motion), First Continental has moved for summary judgment on the Count VI claim. At this point the parties have complied with the requirements of this District Court's General Rule 12(M) and (N) as well as having briefed the motion, which is therefore ripe for decision. For the reasons stated in this memorandum opinion and order, First Continental's motion is granted and the so-called "wrongful termination" claim is dismissed.

 As is required by Rule 56, this Court draws inferences from the parties' factual submissions in the light most favorable to the non-moving party--in this instance Kay. But it is "not required to draw every conceivable inference from the record--only those inferences that are reasonable" ( Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991)). What follows has adhered to that principle.

 Kay's brief term of employment was the result of his acquaintanceship with one of First Continental's trading managers, Anthony Bittman ("Bittman"), an association that arose out of their mutual interest in backgammon. *fn1" Bittman thought that Kay's gaming skills would likely translate well to options trading and, over the course of several conversations, Bittman offered Kay an opportunity to trade currency options for First Continental.

 Kay attempts to portray the result of his discussions with Bittman as an oral agreement to employ him "for a fixed minimum period of time" (Mem. 1, 3), but a fair reading of Kay's own account of events--even with the required reasonable inferences--leaves the objective reader wholly unconvinced on that score. Instead Kay's description of what could reasonably be anticipated by the parties in terms of Kay's possible training and development is a good deal more amorphous, plainly lacking the elements of assured promises and certainty that are required to take the parties' joint understanding out of the category of at-will employment (for discussions in that respect, see, e.g., this Court's early opinion in Payne v. AHFI/Netherlands, B.V., 522 F. Supp. 18 (N.D. Ill. 1980) and the opinion from our Court of Appeals that Payne called into play for comparative purposes, Buian v. J.L. Jacobs & Co., 428 F.2d 531 (7th Cir. 1970)).

 
The information provided in this Application for Employment is true, correct, and complete. If employed, any misstatement or omission of fact on this application may result in my dismissal.
 
I understand that acceptance of an offer of employment does not create a contractual obligation upon the employer to continue to employ me in the future.
 
If you decide to engage an investigative consumer reporting agency to report on my credit and personal history I authorize you to do so. If a report is obtained you must provide, at my request, the name of the agency so I may obtain from them the nature and substance of the information contained in the report.

 Kay is a college graduate with a degree in journalism plus post-graduate work in the same field. In addition to his obvious pride in his own astuteness as a backgammon player, his Application lists his substantial business experience in areas (such as earlier stints engaging in options trading, equity spreads and the like) that were clearly not for the slow of wit. It is candidly disingenuous for Kay to suggest, by attaching a "boiler-plate" label to the Application, that he did not recognize or understand that the document's language meant exactly what it said. As a matter of law, the generalized nature of the oral Kay-Bittman discussions plus the unambiguous terms of the later-executed Application preclude any claim by Kay that his employment was anything other than at-will.

 Relatedly, contemporaneously with his joining First Continental Kay was provided with the company's employment handbook that--as all such handbooks from informed employers tend to do these days--expressly disclaimed any contractual undertaking of employment. Indeed, one of the early pages of the handbook contained a paragraph captioned "PROBATIONARY PERIOD," beginning with this unequivocal caveat:

 
All employment with First Continental Trading is subject to a three month Probationary Period.

 Under all of those circumstances, Kay's employment was unambiguously controlled by the Illinois at-will employment doctrine set out succinctly in Ryherd v. General Cable Co., 124 Ill. 2d 418, ...


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