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Davis v. Times Mirror Magazines Inc.

June 23, 1998

BRIAN DAVIS, PLAINTIFF-APPELLANT,
v.
TIMES MIRROR MAGAZINES, INC., MICHAEL ROONEY, JOHN MARQUARDT, GEORGE BELL AND GEORGE MOSKOWITZ, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice Tully delivered the opinion of the court:

Appeal from the Circuit Court of Cook County.

Honorable David Lichtenstein, judge Presiding.

Plaintiff, Brian Davis, brought this action against defendants, Times Mirror Magazines, Inc. (TMM), Michael Rooney, John Marquardt, George Bell and George Moskowitz, for retaliatory discharge, breach of contract, tortious interference with contract and civil conspiracy. Plaintiff alleged that TMM, his employer, terminated him in retaliation for not participating in smoking marijuana with fellow employees and for later reporting the marijuana incident to his supervisors. Plaintiff also alleged that the individual defendants intentionally interfered with his employment contract and conspired with TMM to terminate his employment. Defendants filed motions for summary judgment on those claims pursuant to section 2-1005 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1005 (West 1994)), which the trial court granted. Plaintiff appeals the trial court's order pursuant to Supreme Court Rule 301 (155 Ill. 2d R. 301).

For the reasons which follow, we affirm.

FACTUAL BACKGROUND

TMM, a magazine publishing company, employed plaintiff in its Chicago office in a magazine advertising sales position for over seven years. TMM issued an employee handbook which stated in pertinent part that "[t]here will be no reprisals as a result of your exercising your right to have your complaint heard and investigated." The handbook also stated in the introduction that:

"This booklet is designed as a general guide to the policies and procedures that relate to your employment at TMM. It does not, and is not intended to, cover every detail or situation that may arise. Certain occasions and situations may require actions apart from the policies contained herein. These will be regarded as exceptions to policy and may be made at management's discretion. THE COMPANY EXPRESSLY RESERVES THE RIGHT TO AMEND, MODIFY OR DELETE ANY PROVISIONS, POLICIES OR BENEFITS AT ANY TIME AND WITHOUT NOTICE.

By accepting employment with TMM, each employee agrees that he or she understands that the employment relationship is 'At Will'. Simply stated, this means that an employee has the right to terminate his or her employ whenever he or she wishes and for whatever reason and the company has the same right to dismiss any employee at any time, with or without cause." (Emphasis in original.)

Plaintiff sold advertising for Field & Stream and Outdoor Life (FS/OL) magazines. In April 1993, TMM congratulated plaintiff in a company newsletter for his successful level of sales and for being cited in an industry survey of advertising executives as one of the salesmen "consider[ed] to be the best in terms of attentiveness, knowledge about product[s]/service[s], professionalism, etc." In May 1993, TMM thanked plaintiff and other employees in a company newsletter for their "extra effort" in meeting a deadline. In June 1993, TMM complimented plaintiff's sales proposals and sent examples of them to its sales staff for them to use as a format for their proposals. In addition, plaintiff's performance evaluations reflected that he met or exceeded most of his job expectations. The evaluations contained positive comments as well as suggestions for improvement.

In the beginning of 1994, FS/OL's sales were decreasing. TMM's President named Bell as "Senior Vice President, Group Publisher" for the magazines. Bell's job was to increase profitability, bring stability to the magazines, and to improve their reputations. Bell replaced the magazines' existing publisher with Rooney in March 1994. Rooney discussed the magazines' lack of performance with Bell, and in response Bell informed Rooney that significant organizational changes might be necessary. In addition, the advertising manager and marketing director advised Bell and Rooney of an immediate need to improve the declining sales in the Chicago Midwest Regional Sales Office. In March 1994, Rooney met with the Chicago office staff to evaluate them. Rooney evaluated Curt Costin, the Regional Sales Manager, and determined that he lacked the necessary management skills and found that Beth Lofchie, the Regional Marketing Manager, lacked direction. Rooney also went with plaintiff to a sales appointment, and found plaintiff to be "off track." According to Rooney, plaintiff made ineffective sales presentations and improperly spent time on market research, which was the responsibility of the marketing group. Rooney believed that plaintiff did not spend enough time making sales calls. Costin's March 1994 employee performance appraisal of plaintiff stated that he was a valued salesperson and solid performer over the years. The appraisal, however, also stated that "[plaintiff] can increase his effectiveness as a salesperson by modifying his work ethic regarding the quantitative aspect of his business," that "[he] must increase call volume and activity in his territory," and that "[b]etter planning, time management, and completion of required tasks (i.e., client follow-up, call reports) will help him increase his effectiveness." Rooney discussed a reorganization of the Chicago office with Costin, whom he wanted to demote to a sales position. Rooney also informed Costin that he wanted to eliminate Lofchie's position. Costin resigned in May 1994. Lofchie was terminated in June 1994. Rooney hired John Marquardt to replace Costin, and delegated to him the responsibility of evaluating the Chicago staff. Meanwhile, Rooney reorganized the top level management staff in the New York office.

At the end of Marquardt's first week in June 1994, he spoke to plaintiff about his behavior. Specifically, Marquardt criticized plaintiff for not coming into the office regularly, only making a few office calls, and dressing in casual attire. Marquardt met with plaintiff again that month and discussed the need to improve sales in the Chicago office and what plaintiff could do to meet Marquardt's expectations. They discussed the situation again on July 18, 1994, when Marquardt told plaintiff that he did not think that he understood the severity of the decreased sales in his territory, and that his lack of sales calls and casual dress did not indicate a willingness to improve. Plaintiff acknowledged his need for improvement.

The sales and marketing staff of FS/OL met for a conference at the Doral Resort and Conference Center in New York from July 20 to 22, 1994. On the second night of the conference, most of the staff members were on a large patio talking and drinking cocktails. Rooney, Marquardt and plaintiff were there. Someone lit a marijuana cigarette and passed it to Rooney, who smoked some of it and passed it on to another person. Several staff members smoked the marijuana. According to plaintiff, Rooney offered him and two other people the marijuana and plaintiff refused it. Rooney denied doing so. Plaintiff stated that he did not smoke marijuana during the Doral conference, but he had smoked marijuana one time in the past, with a TMM co-worker. No one stated that they saw Marquardt smoke the marijuana, and Marquardt denied that he smoked it. Bob Hanna stated in his deposition that he saw Marquardt handle the marijuana cigarette, but he did not see him smoke it.

On July 28, 1994, Marquardt met with plaintiff again, and told him that he was still failing to meet Marquardt's expectations, and asked plaintiff to reorganize his office and to give him an outline of an upcoming sales presentation. He also asked plaintiff to take the weekend to consider whether he could give "100 percent" to his job. The following week, plaintiff told Marquardt that he was willing to improve, but he did not complete the presentation outline or organize his office.

In late July or early August 1994, Marquardt called George Moskowitz, the Director of Human Resources, to discuss his concerns with plaintiff's performance and to seek advice on disciplinary procedures. On August 8, 1994, Marquardt sent a memorandum to TMM's Human Resources ...


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