November 7, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 15-CV-2378 -
Sharon Johnson Coleman, Judge.
Easterbrook, Rovner, and Hamilton, Circuit Judges.
HAMILTON, CIRCUIT JUDGE.
Daryl Sutula-Johnson sued her former employer, alleging that
its changes to her compensation for selling office furniture
breached its contract with her and violated the Illinois Wage
Payment and Collection Act. The district court granted
summary judgment for the employer. We affirm summary judgment
for the employer on the claims for breach of contract but
reverse as to the statutory claims.
Factual & Procedural Background
start by summarizing the changes in Sutula-Johnson's
compensation and then the procedural course of this lawsuit.
Because we are reviewing a grant of summary judgment for the
defendant-employer, we consider facts that are undisputed and
give the plaintiff the benefit of conflicts in the evidence.
The OfficeMax Plan
Sutula-Johnson began selling office furniture more than a
decade ago. She started with Boise Cascade, which then merged
with OfficeMax. In 2010, OfficeMax adopted a written
compensation plan that covered its furniture sales group,
including Sutula-Johnson. Under that plan, OfficeMax paid
furniture account executives, including plaintiff, entirely
in commissions. OfficeMax paid commissions at a rate of
either 27% or 20% of each sale, depending on the sale's
profit. The general policy was that commissions were earned
either when a customer paid or 90 days after the customer was
invoiced, whichever came first. Sutula-Johnson, however, had
negotiated better terms for herself. She earned commissions
paid commissions on a monthly basis in the second or third
paycheck of the month after the commission was earned.
Sutula-Johnson received commissions according to these terms
throughout her employment with OfficeMax.
The New Office Depot Plan
and Office Depot merged in November 2013 and continued
business under the name Office Depot. At first, Office Depot
continued to pay Sutula-Johnson and her OfficeMax colleagues
under the terms of the old OfficeMax plan. Then on July 14,
2014, Office Depot announced that it was adopting a new
compensation plan that would apply to all furniture account
executives effective immediately.
Depot did not roll out the new plan smoothly. The July 14
announcement contained a PowerPoint presentation explaining
the new compensation structure. Within a week, Sutula-Johnson
received a copy of the PowerPoint presentation but not a copy
of the plan itself. Sutula-Johnsonâwho kept notes of the
roll-out and her talks with Office Depot managers-asserts
that employees received an email a month and a half later
saying that the new plan was available for viewing online. In
reality, she testified, the plan was not available at that
time. Sutula-Johnson did not receive a copy of the new plan
until September 26, 2014, and her notes said that the plan
was not yet accessible nationwide.
plan significantly changed how Sutula-Johnson was paid and
reduced her total pay. For the first time, SutulaJohnson
received a combination of salary and what Office Depot called
"incentive payments." The incentive payments were
paid quarterly and with lower rates than the OfficeMax
commissions: 13.5% or 10% instead of 27% or 20%. Office Depot
set a quarterly sales target for each employee and paid 13.5%
or 10% of all sales as "incentive payments,"
depending on whether the employee exceeded the quarterly
Office Depot plan also changed when and how Sutula-Johnson
earned and received her commissions. Instead of earning
commissions upon customer invoicing, the plan said that she
"accrued" the incentive payments upon invoicing but
did not "earn" them until the day Office Depot
actually paid them to her. Under the new plan, an employee
who left the company lost any claim on incentive payments not
yet actually paid to her. According to Office Depot, any
interest the employee had in the incentive pay was not
"earned or vested until payment date." According to
Sutula- Johnson, Office Depot usually paid the quarterly
incentive payments 45 days after the end of each calendar
had earned substantial commissions under the OfficeMax plan.
She quickly figured out that the new Office Depot plan would
reduce her pay significantly. She immediately objected to the
new plan. She initially refused to sign it and complained to
management about what was, in her view, an unfair pay
reduction, especially as applied to sales already in the
works but not yet invoiced. Office Depot management said the
new plan would still apply to her.
her objections, Sutula-Johnson continued working for Office
Depot for more than another year. In early 2015, Office Depot
issued a new written version of the plan with the same key
terms and insisted that Sutula-Johnson sign it. She signed a
form acknowledging the plan in March 2015. Later that month
she filed this suit while still working for Office Depot. She
resigned in December 2015.
sued Office Depot in federal court, invoking diversity
jurisdiction under 28 U.S.C. § 1332(a)(1). Her complaint
alleged breach of contract, unjust enrichment, and violations
of the Illinois Wage Payment and Collection Act, 820 Ill.
Comp. Stat. 115/1 et seq. (the "Illinois Wage
Act"). She claimed that Office Depot breached its
contract with her by paying her under the new compensation
plan before March 2, 2015, when she signed the acknowledgment
form. She also asserted that the "incentive
payments" were commissions under the Illinois Wage Act
and that ...