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Lawrence P. Janda v. United States Cellular Corporation

November 18, 2011

LAWRENCE P. JANDA,
PLAINTIFF-APPELLANT,
v.
UNITED STATES CELLULAR CORPORATION,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 07 L 012101 Honorable Brigid Mary McGrath, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Robert E. Gordon

PRESIDING JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion.

Justice Lampkin concurred in the judgment and opinion.

Justice Garcia concurred in part and dissented in part, with opinion.

OPINION

¶ 1 This appeal concerns the termination of plaintiff Lawrence Janda from his employment with defendant United States Cellular Corporation (USCC). Plaintiff was an employee for USCC from 1996 until his termination in 2005. Plaintiff filed suit against USCC, alleging breach of contract and a claim for promissory estoppel. Plaintiff alleged that he was terminated based on statements made during a meeting that he was told would be confidential and that his termination violated USCC's "Dynamic Organization" policy, which included a mandatory progressive discipline procedure. USCC filed a motion for summary judgment on count I of the complaint and a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2008)) on count II. USCC claimed that plaintiff's breach of contract claim was precluded by plaintiff's written employment agreement, which provided that employment was at will, and by the fact that associate handbooks contained disclaimers that they provided no contractual rights. USCC further claimed that the claim for promissory estoppel was precluded by the existence of the employment agreement. In response, plaintiff filed a motion for discovery pursuant to Illinois Supreme Court Rule 191(b) (eff. July 1, 2002). The trial court granted both of USCC's motions and denied plaintiff's motion for discovery in part. Plaintiff appeals, arguing that the trial court erred in: (1) granting summary judgment in USCC's favor because the written contract was modified by USCC's Dynamic Organization policy and its progressive discipline procedure, (2) dismissing count II of the complaint because the promissory estoppel claim is independent of the breach of contract claim, and (3) denying plaintiff's motion for discovery. We affirm in part and reverse in part.

¶ 2 BACKGROUND

¶ 3 I. Procedural History

¶ 4 On October 25, 2007, plaintiff filed a complaint against USCC for breach of contract. The complaint alleges that in July 1996, plaintiff was hired by USCC as a fixed asset administrator and was subsequently promoted to the position of manager of financial systems and developments. The complaint further alleges that plaintiff was a good employee and was never given any indication that his performance was lacking or needed improvement.

¶ 5 The complaint alleges that on November 3, 2005, plaintiff was terminated from his employment "as a direct result of the acts of George Irving," who also worked at USCC, and that Irving was the cause of the termination of several other USCC managers.

¶ 6 The complaint alleges that at the time of his employment, plaintiff and USCC entered into an oral employment agreement. Plaintiff later received a handbook from USCC, which plaintiff alleges became part of the employment agreement, as was the company's "Dynamic Organization Progressive Disciplinary Process." The handbook contained a list of behaviors that were cause for immediate dismissal and other behaviors that were cause for remedial action, and "it was company policy that no employee was to be terminated for 'just cause' unless all specified verbal and written notices were given to the employee, and documented in their personnel file." The complaint alleges that plaintiff's termination violated the company policy set forth in the handbook and the oral employment promises made by USCC to plaintiff. Plaintiff sought damages in excess of $57,000.

¶ 7 On September 9, 2009, USCC filed a motion for summary judgment. The motion claimed that plaintiff's claim was precluded by a written employment agreement and that, even absent the written agreement, the complaint failed to set forth any clear, definite terms of any alleged oral agreement sufficient to overcome the presumption of an at-will employment. The motion further claimed that the progressive discipline policy was not a contract, nor were the policy handbooks, which included disclaimers that they were not contracts. The motion also claimed that even if the progressive discipline policy was a contract, it was not breached, and that plaintiff's claim was barred by the statute of frauds.

¶ 8 On September 11, 2009, plaintiff made an oral motion to file an amended complaint, which was granted by the trial court. On September 28, 2009, plaintiff filed a verified amended complaint. The complaint contained substantially the same factual allegations as the original complaint, and count I of the amended complaint was the identical breach of contract claim other than an additional allegation claiming that USCC's Dynamic Organization policy modified the oral contract.

¶ 9 Count II of the amended complaint was a claim for promissory estoppel. Count II alleges that plaintiff participated in a focus group meeting on June 15, 2005, concerning the performance of various members of management, including George Irving. The complaint alleges that the participants were told that everything said by them would be completely confidential and that they had no fear of retaliation for anything they said during the meeting. John Rooney, president and chief executive officer of USCC, also specifically stated that the contents of the focus group meeting were confidential. In reliance on those representations, the participants, including plaintiff, spoke candidly.

¶ 10 The complaint alleges that after the meeting, Irving met with plaintiff and others present at the meeting and asked each of them what had been said during the meeting and by whom. Irving told them that "he had heard that there were some nasty comments made about him during the meeting." The complaint further alleges that Irving was told the contents of the meeting by one of the participants. The complaint alleges that each of the leaders present at the meeting, with the exception of the individual who informed Irving of the content of the meeting, was terminated, transferred, or left the company.

¶ 11 The complaint alleges that after plaintiff was terminated, Irving informed USCC employees that plaintiff was terminated based on a performance improvement plan and that he had been terminated for " 'poor performance reasons.' " Both of these statements were false.

¶ 12 On October 23, 2009, USCC filed a motion for summary judgment*fn1 on count I of the amended complaint and a motion to dismiss count II pursuant to section 2-619 of the Code. The motion for summary judgment was identical to the motion previously filed. USCC claimed that count II should be dismissed because a claim for promissory estoppel was precluded where an employment contract exists and disclaimers were provided with the policy handbook on which the employee purported to rely.

¶ 13 On November 16, 2009, plaintiff filed a Rule 191(b) motion for discovery in response to USCC's motion for summary judgment and to dismiss. The motion claimed that the Dynamic Organization procedures altered plaintiff's agreement with USCC. Plaintiff further claimed that his affidavit, complaint, and deposition testimony were sufficient to withstand the motion to dismiss. Plaintiff claimed that he had requested to depose John Rooney, president and chief executive officer of USCC, but USCC refused to produce him. Plaintiff argued that Rooney was the "key witness" in the litigation and that his testimony was required in order to demonstrate that the Dynamic Organization and the mandatory progressive discipline procedures modified the employment agreement. Plaintiff further claimed that the deposition of Tracey Banks-Giles was required because she filed an affidavit concerning exhibits to USCC's motion and "[h]er deposition must be taken to determine the circumstances regarding each of those pages, to understand what they actually mean and why said documents were generated and/or modified."

¶ 14 Plaintiff further argued that Fran Trojan and Lynn Wendt, two other leaders who had also been terminated by USCC, had also filed suit against USCC and that their deposition testimony supported plaintiff's contention that the Dynamic Organization modified the employment agreement. Thus, plaintiff argued that Rooney's deposition was necessary and that there were genuine issues of material fact concerning his employment relationship.

¶ 15 On April 30, 2010, USCC filed an amended motion for summary judgment on count I of the complaint and a section 2-619 motion to dismiss count II of the complaint.*fn2 USCC noted that after it had filed its motion for summary judgment and to dismiss in October 2009, plaintiff's counsel took the deposition of Rooney in Wendt's related case*fn3 and was permitted to ask additional questions that pertained to plaintiff in the instant case. The motion further noted that the court sought amended briefing on USCC's motion, resulting in the filing of the amended motion. The only additional claim in the motion was that plaintiff's claim that he was entitled to notice prior to termination was refuted by the undisputed evidence, including plaintiff's admissions and the unrefuted testimony of Rooney.

¶ 16 On October 27, 2010, the trial court entered an order in which it granted USCC's motion for summary judgment and its motion to dismiss. The trial court also granted plaintiff's request that his discovery motion be considered his response to the motion for summary judgment and to dismiss. The court ordered the deposition of John Rooney to be incorporated into the instant case and denied plaintiff's motion for discovery as to all other individuals.

¶ 17 II. Exhibits

¶ 18 The parties attached a number of documents to their various motions, including affidavits, depositions, and deposition exhibits.

¶ 19 A. Affidavits

¶ 20 1. Affidavit of Tracey Banks-Giles

¶ 21 USCC attached the affidavit of Tracey Banks-Giles to its motion for summary judgment filed on September 9, 2009. Banks-Giles' affidavit stated that she was director of associate relations for USCC, a position that made her familiar with the employment records of USCC associates. The affidavit further stated that several documents attached as exhibits from plaintiff's deposition were true and accurate copies that were prepared and maintained by USCC in the regular course of business. The documents were: (1) an application of employment signed by plaintiff on June 11, 1996, (2) an employment agreement executed by plaintiff and USCC on July 22, 1996, (3) two "Receipt[s] of Associate Handbook" signed by plaintiff, one on July 22, 1996, and one on January 25, 2000, and (4) an "Acknowledgment" signed by plaintiff on May 20, 2002. Finally, the affidavit stated that USCC had no record of any written modifications of the employment agreement

¶ 22 2. Affidavit of Plaintiff

¶ 23 Plaintiff attached his affidavit to his motion for discovery. In the affidavit, plaintiff stated that the Dynamic Organization was incorporated into the employment agreement he had with USCC. He further stated that "[a]ll management personnel were told that the policies contained in and related to Dynamic Organization, including the Progressive Discipline policy were not guidelines, and that deviations from said tenets would not be tolerated." (Emphasis in original.) Plaintiff stated that although the Dynamic Organization was not listed in the associate handbook, the annual performance evaluation contained an entire section devoted to the Dynamic Organization; even if an employee performed satisfactorily in all other respects, he or she could be terminated solely for failing to follow the tenets of the Dynamic Organization.

¶ 24 3. Affidavits of Fran Trojan and Lynn Wendt

¶ 25 Plaintiff's discovery motion also included affidavits from Wendt and Trojan, which were identical to the affidavit filed by plaintiff.

¶ 26 B. Deposition Testimony

¶ 27 1. Plaintiff's Deposition

¶ 28 USCC's motion for summary judgment, filed on September 9, 2009, contained transcripts from plaintiff's deposition. Plaintiff testified that he and USCC entered into an oral employment agreement in July 1996 for plaintiff to work at USCC for approximately $13 per hour; plaintiff testified that the oral agreement came into existence through a conversation he had with the person who hired him. Plaintiff testified that he was promoted several times, eventually becoming manager of financial systems and development, a position in which he was a "leader."*fn4

At the time of his termination, plaintiff was supervising seven employees. When he began his position as manager of financial systems and development, plaintiff participated in management training.

¶ 29 Plaintiff testified about a company policy called the "Dynamic Organization," which was implemented in 2000. Plaintiff testified that the Dynamic Organization "changed a lot of things" and "kind of reset our expectations in what we were expected to do and our agreement with the company." Plaintiff testified that as a leader, he received extra training specifically concerning the progressive discipline policy, which was "integrated with" the Dynamic Organization. However, plaintiff testified that even before the establishment of the Dynamic Organization, USCC was required to use progressive discipline prior to terminating him. Plaintiff explained that under the progressive discipline policy, there were certain "egregious" acts that would result in immediate termination, but that generally, several "write-ups" and opportunities to improve were required prior to termination. He testified that the progressive discipline procedure was written in company policies.

¶ 30 After the Dynamic Organization was implemented in 2000, plaintiff testified that John Rooney "basically told us we are either on the bus or we are not." Plaintiff further testified that USCC again entered into an oral employment agreement with him when the Dynamic Organization was implemented and Rooney told the USCC employees to "either accept this or not*** I think that definitely was an agreement between Jack and the rest of the organization." Plaintiff testified that the progressive discipline procedure was part of the Dynamic Organization and that the progressive discipline policy altered the agreement he had with USCC. Plaintiff testified that the Dynamic Organization had a number of components and that he participated in classes and a "boot camp" about the Dynamic Organization. During these classes, plaintiff testified that the participants discussed the progressive discipline procedure and engaged in "mock interviews" in which they dealt with hypothetical performance issues. Plaintiff testified that Rooney also discussed the Dynamic Organization at a number of meetings and through communications such as memos and e-mails.

¶ 31 Plaintiff testified that nobody ever personally mentioned to him whether he was an at-will employee and "[t]hat term never came up to [him]." He testified that Landa Leichtling, his supervisor, reviewed the progressive discipline policy with him, but testified that "[i]t was more on the focus on how would I discipline my employees and what was expected of me as a leader." Plaintiff testified that the progressive discipline policy was mandatory and that he had been told so in several management courses. He had also been taught that the company reserved the right to impose accelerated discipline and that USCC had the right to change its policies. Plaintiff testified that he learned that there were some issues that could prompt immediate termination without following the steps of progressive discipline.

¶ 32 Plaintiff testified that it was his understanding that even a leader who was not performing adequately would be entitled to progressive discipline. Plaintiff also testified that he did not have a written document saying he was no longer an at-will employee or that he could not be terminated unless he was provided with progressive discipline.

ΒΆ 33 Plaintiff also testified about the rankings available on job performance evaluations. He testified that approximately three quarters of leaders received a ranking of "meets expectations" or lower, and that it was "tough" to receive a ranking of "exceeds expectations." He testified that he always strove to receive a ranking of "exceeds expectations." Plaintiff testified about an annual review of his work that was performed on February 24, 2005. He testified that the review stated that he needed to improve his communication style "to be less negative in [his] tone and body language" and that he needed to improve his expertise in an accounting system Leichtling wanted him to learn. He further testified that he needed to learn to communicate better and to ...


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