The opinion of the court was delivered by: Stiehl, District Judge
Before the Court is defendant's motion for summary judgment (Doc. 29) to which the plaintiff has filed a response (Doc. 36), and the defendant a reply (Doc. 37).*fn1
Plaintiff filed a three count complaint against the defendant, seeking recovery for injuries allegedly related to contrary decisions by his employer. Count I alleges that the defendant wrongfully terminated his contract for work with the Sisters of Mercy Hospital group without just cause. Count II alleges that defendant failed to pay him a commission of 2.5 % of gross profits for managing accounts, and Count III alleges that the defendant discriminated against him on the basis of age. The defendant seeks summary judgment on all counts.
Plaintiff is a 59 year old male who began working for the defendant, a medical supply company in 1975. Plaintiff received several promotions and eventually became a vice president of Midwest Medical. In 1996 he became group Vice President over the Unity Health Care System. In September of 2000, the Unity system dissolved and plaintiff became Vice President of Acute Care. He retained the same salary but his responsibility changed, and extended outside the Unity system. In March of 2002 one of the accounts plaintiff had was the Sisters of Mercy account, which was part of the former Unity Health System. Plaintiff received commissions on the Sisters of Mercy account until September of 2003, at which time the defendant took the account away from him. The record reveals that the account was removed from plaintiff for a number of reasons. The defendant determined in February of 2003 that they were going to put into effect a price increase on sutures and plaintiff was instructed to notify the Sisters of Mercy in writing of the intended increase. Sisters of Mercy advised plaintiff that they would give their business to another company. To keep the account, in April of 2003, the defendant decided that the price increase would not go into effect and instructed plaintiff to so notify Sisters of Mercy. Plaintiff did not notify the customer in writing of the fact that the price increase would not happen, and, according to Sisters of Mercy, the fact that the price increase had been rescinded had never been communicated to them. The defendant removed plaintiff from the Sisters of Mercy account in September of 2003 and he no longer received commission payments on that account.
On November 25, 2003, plaintiff filed a Charge of Discrimination with the EEOC, alleging he was removed from the Sisters of Mercy account because of his age. The EEOC issued plaintiff a Right to Sue letter, and plaintiff subsequently filed this complaint
Federal Rule of Civil Procedure 56(c) provides that a district court shall grant summary judgment "if the pleadings, depositions, answers to interrogatories, 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 judgment as a matter of law." Fed. R. Civ. P. 56(c); See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999). The moving party initially bears the burden to demonstrate an absence of genuine issues of material fact, indicating that judgment should be granted as a matter of law. See Lindemann v. Mobil Oil Corp., 141 F.3d 290, 294 (7th Cir. 1999) (citing Celotex Corp., 477 U.S. at 323).
Once a motion for summary judgment has been made and properly supported, however, the non-movant has the burden of setting forth specific facts showing the existence of a genuine issue for trial. See Lindemann, 141 F.3d at 294. In determining whether a genuine issue of material fact exists, the Court should construe all facts in the light most favorable to the nonmoving party and draw all reasonable and justifiable inferences in that party's favor. See Popovits, 185 F.3d at 731. "[T]he mere existence of some alleged factual dispute between the parties," however, is not sufficient to defeat a motion for summary judgment. See id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). Disputed facts are material only if they might affect the outcome of the suit. First Ind. Bank v. Baker, 957 F.2d 506, 508 (7th Cir. 1992).
A. Count 1 - Wrongful Termination of Sisters of Mercy Account
Plaintiff claims in Count I that defendant breached a contractual obligation to him by removing the Sisters of Mercy account from plaintiff without just cause. He asserts that the Compensation Program which the defendant established is an enforceable contract which gives him an entitlement to that account, and the commissions on that account. The defendant asserts that the plaintiff was removed for, inter alia, failing to communicate that there would not be a price increase on its sutures.
The Court's jurisdiction over this claim rests on diversity of citizenship; therefore, state law governs the determinations herein, and Illinois principles of contract construction apply. See Boatmen's Nat'l Bank of St. Louis v. Smith, 835 F.2d 1200, 1202 (7th Cir. 1987). Overall, the party seeking to enforce an agreement has the burden of establishing the existence of the agreement. Reese v. Forsythe Mergers Group, Inc., 682 N.E.2d 208, 213 (Ill. App. Ct. 1997) (citing Commonwealth Edison Co. v. Indus. Comm'n, 521 N.E.2d 159, 161 (Ill. App. Ct. 1988)).
A review of the Compensation Program document reveals that it simply does not contain a "just cause" provision, or any other language which would rise to the level of "just cause." Procedural requirements set forth in a company manual must be complied with prior to a proper termination of an employee, if the manual is determined to be an enforceable contract. See Ahlgren v. Blue Goose Supermarket, Inc., 639 N.E.2d 922 (1994) (stating that "articulated procedures are a fundamental and necessary part of an ...