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Plaintiff, Gabriel
Vengoechea (Plaintiff) filed a Response . . . (Response) [ECF No. 56] and a Statement of
Undisputed Material Facts in Opposition . . . (SMF Response) [ECF No. 57] on April 11,
2016; Defendant filed a Reply . . . (Reply) [ECF No. 60] on April 20, 2016. Additionally, the
Court heard oral argument at a May 5, 2016 hearing (the Hearing) [ECF No. 68]. The Court
has carefully considered the parties submissions, the record, and applicable law.
I. BACKGROUND
This case arises out of an employment dispute.
(Complaint) [ECF No. 1-2]). Plaintiff began working as a Florida salesman for Illinois-based
Defendant in April 2005. (See SMF 1). In early 2012, when he sought time off for medical
treatment but was suspected instead of interviewing with a competitor Plaintiff revealed to
his superior he was HIV-positive and homosexual. (See SMF Resp. 68). Shortly thereafter,
Defendant initiated an investigation of Plaintiffs use of, and reimbursements for payments to, a
Defendant argues summary judgment is appropriate because under Illinois law, at-will
employees cannot bring a breach of employment claim, as either employer or employee may
terminate the employment at will, without liability for breach of contract. (Mot. 8 (emphasis
in original) (quoting Robinson v. BDO Seidman, LLP, 854 N.E.2d 767, 770 (Ill. App. Ct. 2006))).
It is undisputed Plaintiff signed an Employee Agreement (Employment Agreement) (Ex. L to
Declaration of Sharon Larson (Larson Declaration) [ECF No. 50-2])), which states he was an
at-will employee (see id. 14).
testimony he was an at-will employee. (See Ex. 1 to SMF (Plaintiffs Deposition Transcript)
[ECF No. 50-1] 31:923). Therefore, because Plaintiff was an employee at will, and Defendant
asserts [t]he only exception to the Illinois at-will doctrine is the tort of retaliatory discharge (id.
11 (alteration added; citation omitted)), which would be inapplicable here, Defendant argues the
breach of contract claim must fail.
In Response, Plaintiff correctly asserts there are additional exceptions under Illinois
precedent, including that the employers vast discretion in firing an at-will employee is still
limited by the reasonable expectations of the parties. (Resp. 6 (citing Wilson v. Career Educ.
Corp., 729 F.3d 665, 67475 (7th Cir. 2013))). Plaintiff argues this implied covenant of good
faith and fair dealing can result in liability for terminating an at-will employee who is arbitrarily,
capriciously, or opportunistically deprived of the benefits of his bargain with the employer. (See
id. 67 (citing, inter alia, Wilson, 729 F.3d at 675)). This is especially true where[,] as in Mr.
Vengoecheas case, the termination of the at[-]will employment results in an employee forfeiting
earned commissions, health, or pension benefits and other benefits of the employment and there
disciplinary action, principles of fairness will apply, including, when appropriate, review of a
disciplinary decision. (Code of Business Conduct 20 (emphasis added)). Courts have found the
use of unequivocal verbiage such as will sufficient to give rise to contract rights. See, e.g.,
Duldulao, 505 N.E.2d at 31819; Perman v. ArcVentures, Inc., 554 N.E.2d 982, 987 (Ill. App. Ct.
1990).
The Court is then confronted with the issue of defining the nebulous term principles of
fairness. Fortunately, the Court need not definitively resolve this issue: there remain triable
disputes of fact regarding both the extent to which Defendants internal investigative procedures
were followed during its investigation of Plaintiff, and the extent to which these policies,
scattered among numerous documents, were incorporated into the aforementioned principles of
fairness governing the employment contract.
Plaintiffs favor particularly in light of his success as a salesman up until that point the
inception, execution, and use of Defendants investigation as a ground for Plaintiffs termination
are at least disputed, if not outright suspect, and Defendants rationale arguably does not square
with the timing of the termination. Wilson, 729 F.3d at 677. Therefore, even without resolving
what the phrase principles of fairness entailed between the parties, there remain sufficient
disputes of material fact and reasonable inferences of unfairness to preclude judgment as a matter
of law in Defendants favor.
For the sake of thoroughness, the Court goes on to directly address Defendants
counterarguments. As noted, Defendant asserts even if its additional policy documents were
incorporated into its contract with Plaintiff, each of these other documents either includes a
disclaimer, stating it does not create or modify the employment relationship or limit Defendants
agreement clearly states [n]o statements, promises, or representations have been made by any
party to the other, or relied upon other than as expressly provided in this agreement[.] (Reply
(alterations in original) (quoting Employment Agreement 21)). As a general proposition,
clearly worded disclaimers may defeat even concrete declarations of contract rights if the
disclaimers are known to the parties at the time of contracting. See Border, 75 F.3d at 273
(citations omitted). As applied here, however, this principle does not entitle Defendant to
judgment as a matter of law.
First, as to the Employment Agreement, this disclaimer does not remove the Code of
Business Conduct from consideration because it is incorporated by reference in the Employment
Agreement itself. (See Employment Agreement 18). Second, as to at least the disputed
employee handbook, Plaintiff states the version of the documents he was presented with
which informed his reasonable expectations at the time he entered into the employment contract
did not include any disclaimer. (See Pl.s Decl. 3; SMF Resp. 77). Again, because
Defendant has failed to produce, and indeed even disputes the existence of, any such employee
handbook, there remain triable issues of fact as to whether the handbook existed and whether it
contained a disclaimer. If it existed and had no disclaimer, Duldulao indicates clear contract
language such as the Court is presented with here could support a breach of contact claim.2 See
Defendant also argues the Code of Business Conduct binds only employees and not Defendant, and
therefore could not have limited Defendants discretion. The Court finds this argument unpersuasive
at least in the abstract without any additional support for such a unilateral interpretation.
2
Even if there was a disclaimer, Illinois courts have on occasion declined to enforce disclaimer
provisions. See, e.g., Perman, 554 N.E.2d 982, 987; Hicks v. Methodist Med. Ctr., 593 N.E.2d 119 (Ill.
App. Ct. 1992); Long v. Tazewell/Pekin Consol. Commcn Ctr., 574 N.E.2d 1191 (Ill. App. Ct. 1991).
Although it has been questioned whether these cases represent a majority view in Illinois, see Border, 75
In Count III, Plaintiff alleges, in the alternative, if there was no enforceable contract,
Defendant would still be liable to Plaintiff for unpaid commissions and unreimbursed expenses.
(Compl. 26). Defendant argues there was a governing contract, but asserts even if there was
not, Plaintiff cannot recover for unjust enrichment under Florida law because he already received
payment in the form of his salary for the benefit he conferred upon Defendant. (See Mot. 1819
(citing Rionda v. HSBC Bank U.S.A., N.A., No. 10-20654-CIV, 2010 WL 5476725, at *10 (S.D.
Fla. Dec. 30, 2010))).
Plaintiff neglected to defend Count III at all in his Response. (See generally Resp.). In
oral argument at the Hearing, he asserted entirely without support, as his argument is in
complete error he need not have done so because the claim was pleaded in the alternative. On
the basis of the parties written submissions, Plaintiffs omission would result in abandonment of
the claim. See Edmondson v. Bd. of Trustees of Univ. of Ala., 258 F. Appx 250, 253 (11th Cir.
2007). With the benefit of oral argument at the Hearing, however, Plaintiff was provided the
opportunity to resuscitate this claim, and argued it should survive because the record provides
adequate evidence to find Defendant was unjustly enriched by Plaintiffs termination. The Court
disagrees.
There can be no claim for unjust enrichment if a valid contract existed between the
parties. See Williams v. Mohawk Indus., Inc., 465 F.3d 1277, 1295 (11th Cir. 2006). It is
undisputed Plaintiff was presented with an Employment Agreement and signed his name to it
F.3d at 275, these precedents compound the Courts inability to grant judgment as a matter of law without
analyzing the text of every potentially applicable document.
Further, Plaintiff still attempts to argue his employment was not necessarily at will despite not just an
explicit declaration of his at-will status in the Employment Agreement (see Employment Agreement 14),
but also the clear Illinois presumption that employment for an indefinite term is employment at will, see
Duldulao, 505 N.E.2d at 317. The Court is similarly at a loss to explain how Plaintiff believes he might
defeat the presumption of at-will employment if there was no contract.
3
The parties expended considerable argument debating whether Illinois or Florida law should apply,
without being able to identify any substantive difference between the two states approaches to unjust
enrichment with the exception of the Florida precedent of Rionda, 2010 WL 5476725.
10
Neither
argument persuades.
Defendant would likely reiterate it is undisputed bonus payments were awarded in Defendants sole
discretion. However, the clear contract language to that effect would not apply if the parties found
themselves arguing Count III; instead, the course of dealing between the parties would be at issue.
5
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summary judgment would be inappropriate as to the commissions earned from sales during
first and second quarter 2012, for which the parties disputed at the Hearing whether payment had
already been made. Nevertheless, because the Court finds there was a contact between the
parties, summary judgment is appropriate as to the entirety of Count III, and Plaintiff may pursue
these alleged damages only on a breach of contract theory.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED AND ADJUDGED that the Motion [ECF No. 49] is GRANTED in part
and DENIED in part as follows:
1.
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DONE AND ORDERED in Miami, Florida, this 17th day of May, 2016.
_________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc:
counsel of record
Raymond R. Dieppa
Joel Magolnick
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