November 13, 2007 Volume: 153 Issue: 223

By Stephanie Potter
Law Bulletin staff writer

A Marshall Field's employee fired for drawing violent cartoons of a co-worker, which he says were done in jest, will get another shot at proving that the department store breached its employment contract with him, the 1st District Appellate Court held Tuesday.

The appeals court reversed in part a ruling by Cook County Associate Judge Abishi C. Cunningham, who dismissed Gary Ross' lawsuit against May Co., doing business as Marshall Field's and Co. While the appeals court said Ross' breach of contract count can go forward, it held that Cunningham properly dismissed a count alleging promissory estoppel.

In his ruling, Cunningham held that a 1968 employment handbook given to Ross, along with oral assurances of job security made by the employer, created an employment contract between Ross and Marshall Field's. However, Cunningham determined that disclaimers in revised handbooks given to Ross in the late 1980s invalidated that employment contract, the opinion said.

The 1968 handbook, according to the opinion, provided for progressive discipline. By contrast, the disclaimers in the handbooks issued in the late 1980s provided that employees could be terminated at will.

The primary issue on appeal, wrote Justice Shelvin L. Hall, was whether the modifications made to the employment relationship in those later handbooks were supported by consideration. Cunningham ruled that new benefits offered to Ross and his fellow employees in 1990 constituted consideration for the modification of Ross' employment contract. However, Ross argued on appeal that those benefits were offered to all eligible employees. As such, he said, there was no bargained-for exchange between him and the department store in which he agreed
to modify his employment contract in exchange for the benefits. The appeals court agreed.

''The additional benefits, which were offered in 1990, were in no way related to, bargained for, or referenced to any preexisting contractual rights; the benefits were offered to all eligible employees whether or not they possessed contractual rights,'' Hall wrote.
Ross began working for Marshall Field's in 1965 as a stock boy and was a customer service representative when he was fired, his attorney said. He brought suit against the company in 2004 after he was fired for drawing pictures showing a female co-worker in ''various violent situations,'' the opinion said.

''Plaintiff drew stick figures depicting the co-worker being electrocuted, boiled, guillotined, run over by a train, shot out of a cannon, tied to a rocket, and standing precariously under a 10,000- pound weight,'' Hall wrote.

After the co-worker's son brought the drawings to the department store's attention, Ross was suspended and told to see a psychologist. The psychologist, according to the opinion, said Ross was not a threat to anyone. But he was fired nonetheless. Ross contends he was terminated without cause.

In his brief, Ross said the drawings were a joking response to a fashion show the department store was hosting in which models were suspended by transparent wires. The situations the coworker faced in the cartoons ''were intended to relate, in a humorous way, to models who were suspended from wires in the vertical fashion show,'' the brief said.

According to the opinion, May Co. expressed concern that if Ross prevailed on appeal it would create a ''logistical nightmare for employers where they would be required to individually bargain with each employee any time they wished to change policies or give better benefits.''

However, the appeals court found that those concerns were exaggerated. Citing Lindsey v. Rosen, 255 Ill.App. 21, 26 (1929), Hall said it is well-established law in Illinois that any modification of a contract's terms must be made by mutual agreement and for consideration.

Further, the appeals court cited a Wyoming Supreme Court case in which the court said an employer's concern about having to individually negotiate employment contracts was not significant enough to risk the loss of important contractual rights by employees if employers are allowed to modify handbook provisions to change employees' status to at-will without consideration. Brodie v. General Chemical Corp., 934 P.2d 1263, 1268 (1997).

Justices Thomas E. Hoffman and Leslie E. South concurred in the 12-page opinion.

Gary Ross v. May Co., etc., No. 1-06-0239.

Ross was represented on appeal by Michael D. Robbins. Robbins said he sees the appeals court's ruling as a clarification of Doyle v. Holy Cross Hospital, 186 Ill.2d 104 (1999), in which the court said continued employment alone is not consideration for the unilateral modification of an employment contract. Robbins argued that the conferral of benefits offered to all employees likewise was not consideration.

''He didn't agree to give up any contractual rights,'' Robbins said of his client.

May Co. was represented on appeal by Robert J. Mignin of Seyfarth, Shaw LLP. Mignin could not be reached for comment Tuesday afternoon.