United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN United States District Court Judge
Daryl Sutula-Johnson, brought this action against her
employer, Office Depot, Inc., alleging that Office Depot
breached its contract with her, unjustly enriched itself at
her expense, and violated the Illinois Wage Payment and
Collection Act by improperly implementing a new compensation
plan and failing to properly calculate her compensation
before the new plan went into effect. Following her
resignation from Office Depot, Sutula-Johnson amended her
complaint to additionally allege that Office Depot refused to
pay her outstanding commissions following her resignation.
Both parties have now filed cross-motions for summary
judgment. For the reasons set forth below,
Sutula-Johnson's motion for summary judgment  is
denied and Office Depot's motion for summary judgment
 is granted.
following facts are undisputed except where otherwise
noted. In April 2004, Sutula-Johnson was hired by
office-supply company Boise Cascade as a sales executive for
commercial office furniture. While employed by Boise Cascade,
Sutula-Johnson was paid on a commission basis. Her commission
was 27% for orders with an installed profit of 10% or
greater, and 20% for orders with an installed profit of less
Cascade was subsequently acquired by OfficeMax Incorporated
(“OfficeMax”), which retained Sutula-Johnson as a
Furniture Account Executive (“FAE”). While
working in this role, Sutula-Johnson was compensated pursuant
to the OfficeMax Workspace Sales Incentive Compensation Plan
for Furniture Account Executive (the “2010 OfficeMax
Plan”), which it is undisputed that she accepted. In
pertinent part, the plan provided that FAE's would be
paid by commission, but would receive a bi-weekly draw that
would be recovered from their subsequent commissions.
Commissions were to be paid on the second or third paycheck
of the month following the date that the commission was
earned. The plan further provided that a commission was
“earned” at the earliest of either the payment of
the fully invoiced proposal or the passing of 90 days after
the proposal was fully invoiced (assuming the customer had
not refused to pay the invoice due to issues that the FAE
failed to resolve). Sutula-Johnson, however, was
grandfathered in under the terms of her prior commission plan
with Boise, and therefore was entitled to disbursement of
commissions when her sales orders were invoiced to the
customer. Under the plan, Sutula-Johnson continued to earn
27% commissions on sales with an installation profit of over
10% and 20% commissions on sales with an installation profit
of under 10%.
Frequently Asked Questions (FAQ) contained in the plan
further explained the plan's mechanisms, providing in
Am I guaranteed to receive any payment under the plan?
No. No associate shall have any vested interest in the
payment of an incentive prior to any actual payment being
made and earned.
What happens if I leave employment with OfficeMax?
If you terminate employment with OfficeMax for any reason
including retirement, death, or disability, you will cease to
be a participant in the plan as of the date of termination.
In these cases, you will receive payment only of any
incentives earned as of the date of termination. An FAE will
be paid a commission on propoals [sic] fully invoiced on or
before the termination date, less any chargeback, recoupment,
or reversal as described in the plan. An FAE will not earn
any commission on invoices issued after the FAE's
termination date. The commission payout (less any punch list
items identified prior to termination) is earned at the
earliest of the payment by the customer of the fully invoiced
proposal or passing of the ninetieth day after the proposal
was fully invoiced and the customer has not refused to pay
the invoice due to issues not resolved by the FAE.
receiving the FY 2010 sales incentive plan, the recipient was
to sign an acknowledgement stating, in pertinent part, that
they understood “that neither [the plan] nor any other
written or verbal communication alters the status of my
employment to anything other than at-will or otherwise
creates a contract of employment.” (Dkt. 58). In its
FAQ section, the 2010 plan also provided, in pertinent part:
participation in the plan guarantee my employment?
No. Neither this plan nor any action taken under the plan
gives you the right to be retained as an employee for any
period. This plan is not and should not be thought of as a
contract of employment other than at-will. Employment with
OfficeMax is “at-will.” This means either you or
the company have the right to terminate your employment at
any time, for any reason, with or without notice.
Can the plan be changed or terminated?
Yes. OfficeMax, in its sole discretion, may amend or
terminate the plan at any time for any reason without notice.
November 2013, Office Max merged with Office Depot, resulting
in the formation of the defendant, Office Depot, Inc.
Sutula-Johnson continued to work for Office Depot in the same
capacity and continued to be compensated pursuant to the 2010
OfficeMax Plan until July of 2014. On July 14, 2014, Office
Depot advised all furniture sales employees, including
Sutula-Johnson, that Office Depot would be implementing a new
compensation plan, the Office Depot, Inc. 2014 Contract Sales
Division Quarterly Incentive Plan (“2014 Plan”),
which would be in effect for all orders invoiced after July
14, 2014. Sutula-Johnson subsequently met with her supervisor
to discuss the plan's provisions and how it would impact
her compensation. Although not addressed in the parties'
Rule 56 statements, at oral argument the parties agreed that
under the new compensation plan Sutula-Johnson was paid a $3,
400 salary every two weeks in addition to quarterly incentive
payments. Under the terms of the 2014 plan, sales
representatives with a margin above 125% received a 13.5%
incentive payment and those with a margin below 125% received
a 10% incentive payment. The incentive payments were to be
made in lump sum payments in the calendar quarter following
the end of the eligible service period. Payments, moreover,
were not “earned or vested” until they were
calculated, approved, and distributed. The 2014 plan also
provided that an associate who terminated their employment
during or after the eligible service period for a reason
other than death, disability, retirement, or a reduction in
force would not be eligible for any payment under the
incentive plan unless such payment was required by law. And,
like the prior plan, the 2014 plan provided that it “is
not intended to be, and does not constitute in any manner, a
contract or guarantee of employment between the Company and
Eligible Associates and is not applicable beyond the Eligible
Service Period.” (Dkt. 58).
2014 plan went into general effect on July 14, 2014.
Sutula-Johnson spoke with various managers about the plan and
brought to their attention both general objections to its
provisions and specific typos within its body. Despite her
objections, Sutula-Johnson was informed that the plan was
going into effect and would govern her compensation, and that
if she was unwilling to accept that she could resign.