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Case 1:15-cv-22700-CMA Document 73 Entered on FLSD Docket 05/17/2016 Page 1 of 13

CASE NO. 15-22700-CIV-ALTONAGA/O’Sullivan
THIS CAUSE came before the Court upon Defendant, AbbVie, Inc.’s (“Defendant[’s]”)
Motion for Summary Judgment . . . (“Motion”) [ECF No. 49] and Statement of Undisputed
Material Facts . . . (“SMF”) [ECF No. 50], both filed March 8, 2016.

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.
This case arises out of an employment dispute.

(See generally Complaint . . .

(“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 Plaintiff’s use of, and reimbursements for payments to, a

Case 1:15-cv-22700-CMA Document 73 Entered on FLSD Docket 05/17/2016 Page 2 of 13
CASE NO. 15-22700-CIV-ALTONAGA/O’Sullivan
specific caterer. (See id.). Plaintiff had previously been subjected to a similar investigation in
2008, following which he was told to use other caterers.

(See SMF ¶¶ 30–35). He was

terminated in September 2012. (See id. ¶ 2).
Plaintiff nominally brings three claims against Defendant, alleging: 1) breach of contract
for improper termination on account of Defendant’s violations of its own disciplinary and
discrimination policies (“Count I”); 2) breach of contract for failure to pay commissions and
benefits owed to Plaintiff, along with failure to reimburse travel expenses (“Count II”); and, in
the alternative, 3) unjust enrichment seeking the same damages in the event there was no valid
contract between the parties (“Count III”). (See generally Compl.).
Summary judgment is rendered if the pleadings, the discovery and disclosure materials
on file, and any affidavits show there is no genuine issue as to any material fact and the movant
is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(a), (c). “An issue of fact is
material if it is a legal element of the claim under the applicable substantive law which might
affect the outcome of the case.” Burgos v. Chertoff, 274 F. App’x 839, 841 (11th Cir. 2008)
(internal quotation marks omitted) (quoting Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th
Cir. 1997)). “A factual dispute is genuine if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Channa Imps., Inc. v. Hybur, Ltd., No. 07-21516-CIV,
2008 WL 2914977, at *2 (S.D. Fla. July 25, 2008) (internal quotation marks omitted) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). At summary judgment, the moving
party has the burden of proving the absence of a genuine issue of material fact, and all factual
inferences are drawn in favor of the nonmoving party. See Allen, 121 F.3d at 646.


Case 1:15-cv-22700-CMA Document 73 Entered on FLSD Docket 05/17/2016 Page 3 of 13
CASE NO. 15-22700-CIV-ALTONAGA/O’Sullivan
In Count I, Plaintiff alleges “Defendant’s termination of Plaintiff constituted a breach of
the employment agreement and a breach of contract as it was without good cause in violation of
its own policies and without adhering to its progressive disciplinary policy.” (Compl. ¶ 16).
Count II alleges “Defendant breached the employment agreement with Plaintiff by failing to
properly pay Plaintiff all commissions and benefits due, including accrued and unused holiday
and sick pay, as well as failing to reimburse Plaintiff for all travel and work-related expenses
upon the termination of his employment.” (Id. ¶ 21). As explained at the Hearing, the Court
construes Counts I and II as a single claim for breach of an employment contract, as both claims
merely allege different damages arising from the same, single purported breach. Count III is
properly pleaded.
Defendant moves for summary judgment on all claims. Defendant argues Counts I and II
fail primarily because Plaintiff admits he was an at-will employee, and under Illinois law, an atwill employee cannot bring a breach of contract claim challenging his termination. (See Mot. 8
(citations omitted)). Defendant argues Count III fails because either: 1) there is a contract; or 2)
under applicable Florida law, a salaried employee cannot bring suit for an employer’s failure to
pay purely discretionary bonuses. (See id. 18–19 (citations omitted)). On Counts I and II,
Plaintiff argues Defendant overlooks a relevant exception under which even an at-will employee
may challenge a termination in violation of the employee’s reasonable expectations of his terms
of employment; as to Count III, Plaintiff argues Defendant’s cited precedent for unjust
enrichment is inapplicable to this case. (See generally Resp.). The Court analyzes the claims in


Case 1:15-cv-22700-CMA Document 73 Entered on FLSD Docket 05/17/2016 Page 4 of 13
CASE NO. 15-22700-CIV-ALTONAGA/O’Sullivan

Counts I & II (Breach of Contract)

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).

Further, Defendant notes Plaintiff admitted in deposition

testimony he was an at-will employee. (See Ex. 1 to SMF (“Plaintiff’s Deposition Transcript”)
[ECF No. 50-1] 31:9–23). 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 employer’s 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, 674–75 (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. 6–7 (citing, inter alia, Wilson, 729 F.3d at 675)). “This is especially true where[,] as in Mr.
Vengoechea’s 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


Case 1:15-cv-22700-CMA Document 73 Entered on FLSD Docket 05/17/2016 Page 5 of 13
CASE NO. 15-22700-CIV-ALTONAGA/O’Sullivan
is evidence that the employer’s claimed reason for termination does not ‘square with the timing
of the termination.’” (Id. 7 (alterations added) (quoting Wilson, 729 F.3d at 677)).
In Reply, Defendant argues Plaintiff fails to identify any plain language either within the
Employment Agreement, or any document that could be considered to have properly modified or
supplemented the Employment Agreement, which conferred contractual rights Defendant could
then have improperly denied by terminating Plaintiff’s admittedly at-will employment. (See
Reply 1–2). Defendant further argues Plaintiff’s cited case law is inapposite or distinguishable,
and the implied covenant of good faith and fair dealing did not limit Defendant’s discretion to
fire Plaintiff — particularly following an investigation revealing good cause for termination.
(See id. 4–6).
If there is one thing that can be said with certainty here, it is the Court finds itself in
uncharted territory — out to sea in unfamiliar cross-currents of conflicting Illinois precedent,
while attempting to resolve what appears to be a fact pattern, if not issue, of first impression.
The inharmonious body of relevant case law provides general statements supportive of Plaintiff’s
argument, but no close factual analogues finding for a similarly situated plaintiff as a matter of
law. Nevertheless, as Plaintiff does not move for judgment as a matter of law, and there remain
disputes of material fact in the incomplete record presented here, the Court is able to resolve this
matter without charting a new course for Illinois law.
Illinois courts agree the implied covenant of good faith and fair dealing does not create an
independent cause of action. See Wilson, 729 F.3d at 687 (Wood, J., concurring in part and
dissenting in part) (citing Anderson v. Burton Assocs., Ltd., 218 578 N.E.2d 199 (Ill. App. Ct.
1991)). Rather, it “is used as a construction aid to assist the Court in determining whether the
manner in which one party exercised its discretion under the contract is violated by the


Case 1:15-cv-22700-CMA Document 73 Entered on FLSD Docket 05/17/2016 Page 6 of 13
CASE NO. 15-22700-CIV-ALTONAGA/O’Sullivan
reasonable expectations of the parties when they entered into the contract.” Wilson, 729 F.3d at
675. Courts have also clarified “promises made in an employee handbook can give rise to a
legitimate claim of entitlement sufficient to be protected as a property interest,” Border v. City of
Crystal Lake, 75 F.3d 270, 273 (7th Cir. 1996) (citing Campbell v. City of Champaign, 940 F.2d
1111, 1112 (7th Cir. 1991)), and that is essentially what Plaintiff argues occurred here.
Plaintiff asserts he was provided an employee handbook when he started working for
Defendant, and in his deposition testimony explains: “when I read the handbook, it clearly stated
that under no circumstances somebody should be let go due to discrimination. That was in the
handbook. I don’t have the handbook with me, right now. . . . [I]t was given to me, in 2005,
when I was hired.” (Pl.’s Dep. Tr. 80:12–18 (alterations added)). Defendant disputes the
existence of such a handbook, and no handbook has been produced. Whether there existed an
employee handbook when Plaintiff began working for Defendant is a triable issue of fact, and the
Court cannot render judgment as a matter of law by resolving that dispute in place of the factfinder; if there was such a handbook, without access to it, the Court cannot conduct the close
textual analysis that would be required to determine if its language contained clear, definite
promises sufficient to impact the reasonable expectations of the parties. See Duldulao v. Saint
Mary of Nazareth Hosp. Ctr., 115 505 N.E.2d, 314, 317–19 (Ill. 1987).
Even on the record currently before the Court, summary judgment is not appropriate. In
addition to the disputed employee handbook, Plaintiff asserts when his employment began he
was provided with a copy of Defendant’s “Business Code of Conduct.” (See Declaration of
Gabriel Vengoechea (“Plaintiff’s Declaration”) [ECF No. 57-11] ¶ 1). This document is in the
record (see Ex. A to Pl’s Decl. (“Code of Business Conduct”)), and the Employment Agreement
explicitly incorporates the Code of Business Conduct into the employment contract (see


Case 1:15-cv-22700-CMA Document 73 Entered on FLSD Docket 05/17/2016 Page 7 of 13
CASE NO. 15-22700-CIV-ALTONAGA/O’Sullivan
Employment Agreement ¶ 18).

The Code of Business Conduct states, “With respect to

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 318–19; Perman v. ArcVentures, Inc., 554 N.E.2d 982, 987 (Ill. App. Ct.
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 Defendant’s 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.

(See Resp. 3–5).

Drawing all inferences in

Plaintiff’s favor — particularly in light of his success as a salesman up until that point — the
inception, execution, and use of Defendant’s investigation as a ground for Plaintiff’s termination
are at least disputed, if not outright suspect, and Defendant’s 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 Defendant’s favor.
For the sake of thoroughness, the Court goes on to directly address Defendant’s
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 Defendant’s


Case 1:15-cv-22700-CMA Document 73 Entered on FLSD Docket 05/17/2016 Page 8 of 13
CASE NO. 15-22700-CIV-ALTONAGA/O’Sullivan
right to terminate an at-will employee, and/or fails to make a clear enough promise to constitute
a contractual right. 1 (See Mot. 3–5; Reply 1–4).

Defendant also argues the employment

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 Defendant’s discretion. The Court finds this argument unpersuasive —
at least in the abstract without any additional support for such a unilateral interpretation.

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. Comm’cn 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


Case 1:15-cv-22700-CMA Document 73 Entered on FLSD Docket 05/17/2016 Page 9 of 13
CASE NO. 15-22700-CIV-ALTONAGA/O’Sullivan
505 N.E.2d at 319. Therefore, summary judgment on the combination of Counts I and II is

Count III (Unjust Enrichment)

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. 18–19
(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, Plaintiff’s omission would result in abandonment of
the claim. See Edmondson v. Bd. of Trustees of Univ. of Ala., 258 F. App’x 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 Plaintiff’s termination. The Court
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 Court’s inability to grant judgment as a matter of law without
analyzing the text of every potentially applicable document.


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