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August 5, 1997


The opinion of the court was delivered by: CASTILLO


 This case centers on claims by a salesman that he is due more commissions than his former employer has paid him, because the employer's unilateral attempts to change the terms of his employment were rejected by him. The employer insists that the employee did in fact accept the changes to his commission structure--by continuing to work after the changes were made--and has moved for summary judgment. The following facts are drawn from the statements submitted by the parties in compliance with Local General Rule 12.

 Richard Schoppert was hired as a salesman by CCTC International, Inc. in January 1990. The terms of his employment were set out in a letter from CCTC to Schoppert, dated January 11, 1990: they included a $ 60,000 annual salary plus 1/2% commission on sales to certain assigned accounts. *fn1" The letter did not mention any fixed length of employment, and the parties agree that Schoppert's employment was "at will," that is, terminable at any time for any reason by either party. Schoppert indicated his acceptance of the terms of the offer by signing the letter in the space indicated on January 20, 1990, and returning it to CCTC. Schoppert then commenced work for CCTC.

 In December 1991, CCTC informed Schoppert that it was changing his commission structure, so that instead of receiving a 1/2% commission on sales to assigned accounts, Schoppert would receive commissions on 2% of the gross margin sales to assigned accounts (the "1991 Modification"). When told of this change at a meeting in Montreal, Schoppert testified that he told the CCTC executives that it was not acceptable. Their response was equally blunt: one of them said, "Well, that's the plan." One of the CCTC executives present at the meeting testified that Schoppert ultimately accepted the changes. Schoppert denies this. The 1991 Modification was implemented over Schoppert's objections, retroactive to September 1, 1991. Schoppert never received any written version of the 1991 Modification. Schoppert continued working for CCTC and was paid at the new, modified rate. Although Schoppert testified that he "continually objected" to the fact that he was being paid at this new rate, no evidence other than his own testimony in deposition supports this contention.

 Two and a half years later in the summer of 1994, history repeated itself. Schoppert received two letters from CCTC in July, both announcing another unilateral revision to his contract that was to take effect August 1, 1994 (the "1994 Modification"). The revisions lowered Schoppert's base salary from $ 60,000 to $ 45,000, with a non-refundable advance on commissions of $ 15,000; raised the commission to approximately 6% of gross margins; required that he split sales responsibilities with another sales representative and "re-oriented his job responsibilities to the industrial market"; and required that he sign a non-compete agreement. The July 8, 1994 letter had a space for Schoppert's signature to indicate his assent, but Schoppert never signed it. A similar letter sent on July 15, 1994 also went unsigned. Nor did Schoppert ever sign the non-compete agreement. Although Schoppert did split his sales responsibilities and commissions with another sales representative, the parties dispute whether he did so under the 1994 Modification or under some other arrangement.

 Despite his complaints, Schoppert continued to work, and CCTC continued paying him at the same rate as before ($ 60,000 per year). In a letter dated February 20, 1995, CCTC once again outlined the 1994 Modification it wished to make, and stated that it considered the Modification to have been made, retroactive to July 15, 1994. CCTC explained that the amount it was paying Schoppert, $ 60,000 per year, represented the sum of his new $ 45,000-a-year salary and a $ 15,000 non-refundable advance on commissions, as provided in the 1994 Modification, rather than his old $ 60,000 base salary. The February 1995 letter again sought Schoppert's signature as an indication of acceptance of its terms; Schoppert again did not sign it. On March 24, 1995, Schoppert's paycheck began reflecting a yearly salary of $ 45,000 with a $ 15,000 advance on commissions.

 Schoppert responded with a letter of his own on April 28, 1995. In it, he objected to the change in his paycheck, reiterated that he had never agreed to the 1994 Modification, and stated that he would not do so without certain changes, which he proposed. In the letter, Schoppert also reiterated that he had not accepted or consented to the 1991 Modification. These denials of acceptance or consent to the various changes made by CCTC were a regular feature of his correspondence with CCTC thereafter. Over the next several months, Schoppert and CCTC's Director of Marketing and Sales had informal discussions about the proposed 1994 Modification, but never came to any formal agreement.

 CCTC's first formal response to Schoppert's April 1995 letter did not come until nine months later. In a letter dated January 29, 1996, CCTC again informed Schoppert that it was operating under the terms of the 1994 Modification. The letter required Schoppert to sign and return the letter as well as some other documents, or else CCTC would "understand that [he did] not wish to continue his employment and [was] resigning from [his] position." Pl.'s Rule 12(M) Statement, Ex. D-3. Although the parties exchanged another round of letters, Schoppert still would not sign. CCTC fired him on February 22, 1996. Schoppert then brought this lawsuit, claiming that he was owed the difference between his starting salary and commission rate, and the post-1991 and -1994 Modifications rate that he received. Both parties moved for summary judgment in their own favor. We denied Schoppert's motion without further briefing, finding that he could not show the absence of genuine issues of fact that would entitle him to judgment as a matter of law. We now address CCTC's motion.


 Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The nonmovant must "make a showing sufficient to establish the existence of [the] element[s] essential to that party's case, and on which that party will bear the burden of proof at trial" in order to withstand a motion for summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In determining whether factual issues exist, the court views all the evidence in the light most favorable to the non-moving party, and draws all reasonable inferences in favor of that party. Wolf v. Buss, 77 F.3d 914, 918 (7th Cir. 1996). However, if "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party there is no 'genuine' issue for trial." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).


 It is well-established in Illinois that employment without any definite term is employment at will, which is terminable by either party at any time for any reason. "When an employment agreement is terminable at will, it may be modified by the employer as a condition of its continuance." Doyle v. Holy Cross Hosp., No. 1-95-3243, 1997 WL 138705, at *4 (Ill. App. Ct. 1st Dist. 1997); see also Swalley v. Addressograph Multigraph Corp., 158 F.2d 51, 54 (7th Cir. 1946). Because the continuation of an at-will relationship cannot be taken for granted, if one party proposes a change to the terms of the contract and the other party nonetheless continues to perform as usual, the modification to the contract is deemed to be effective. The continued ...

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