Hrvoje Rukavina v. The Board of Trustees of Western Illinois University

OPINION

BIRNBAUM, C J.

I. INTRODUCTION

Claimant brings this case against the Board of Trustees of Western Illinois University ("WIU") sounding in breach of an employment contract offered to him on September 16, 2010 and accepted by him on September 24, 2010. The employment contract was in the form of a letter from Dean Thomas Erekson admitted into evidence at hearing. The material terms of the letter provide as follows:

Upon recommendation of Dr. Winthrop Phippen, Director of the Alternative Crops Research Program, I am pleased to offer you the temporary position of Faculty Assistant, Plant Breeding Post Doctorate, in the School of Agriculture at Western Illinois University at a salary of $2,500 per month for 28.5 months. The period of this 100- percent, grant funded appointment will be October 18, 2010 to February 28, 2013.

Employment for the full 28.5 months is contingent upon successfully completing an annual review of work performance after 12 months.

Your employment is subject to availability of funds, laws of the State of Illinois, and the policies and regulations of the Board of Trustees and the University. This appointment shall remain in effect until modified or terminated in accordance with the policies and procedures at Western Illinois University and is contingent upon continued approval of external funding by WIU and receipt of funds from the sponsoring agency.

Claimant signed and dated this letter at the bottom on September 24, 2010 adding: "I accept the position as described above."

[*103] Claimant's employment ended effective the end of October 2011 after he received a letter dated October 19, 2011 from Dr. Winthrop Phippen, USDA-NIFA AFRI Grant Project Director, that states:

On the USDA-NIFA AFRI grant funded project "Undergraduate Training and Research in Plant Breeding," your primary duties were to produce manuscripts and create innovative independent research in the area of nitrogen uptake and the use efficiency in Field Pennycress. You were also required to support all facets of the current plant breeding program. As you are aware, your position as Post-doctorate is renewed on an annual basis subject to an annual review. Unfortunately, even after speaking with you on multiple occasions regarding the need to improve your performance and the lack of any original research, you demonstrated no improvement or initiative to work independently. Due to these significant short comings, I have elected not to renew your contract for a second year. I feel this is best for the project and will enable you to find employment in an area that best suits your abilities. I will continue to pay your salary and benefits until the end of October, but you will not be required to come to work.

At the hearing on March 26, 2015, and in the trial briefs, Claimant maintains that WIU lacked cause to terminate his employment contract. Claimant's monthly salary at his termination was $2,500. After he left WIU, he drew unemployment benefits of $765 every two weeks for 16 months. Claimant seeks damages arising from the unlawful termination.

II. LEGAL STANDARD FOR BREACH OF CONTRACT In order to prove a breach of contract, a claimant has the burden of proving by a preponderance of the evidence that a valid and enforceable contract existed, that the claimant performed his obligations under the contract, and the respondent breached the contract resulting in damages to the claimant. See Black v. State, 49 Ill.Ct.Cl. 143, 147 (1996); Sherman v. Ryan, 392 Ill.App.3d 712, 732 (1st Dist. 2009).

III. PARTIES' POSITIONS

Claimant maintains that when an employee is terminated under a contract and the employer alleges inadequate performance, the employer bears the burden of proving cause for the termination. Respondent argues that the letter from Dean Erekson that formed the basis of the employment contract does not set forth the criteria which will be used in performing the annual review, what the annual review must contain, how it is to be prepared, or how the review is to be given. Claimant argues that the letter provides that Claimant was entitled to an annual review of work performance in order to continue his work with Respondent. Respondent further maintains that Claimant's own opinion of his work and performance is irrelevant and that Claimant did not challenge Dr. Phippen's right to determine whether Claimant's contract was renewed for the second year.

Respondent asserts Claimant performed so poorly that Claimant was simply unable to perform his job duties. Respondent argues that Claimant showed near complete lack of initiative, knowledge, skills and ability and/or willingness to follow instructions and produced [*104] no publishable data. Respondent alleges the only thing published regarding the use of nitrogen (which was the purpose of the grant) was a poster that Claimant refused to present at an international conference in North Dakota. Other alleged deficiencies include: not providing a data base to Dr. Phippen regarding oil seeds and nitrogen uptake; not knowing how to place germinated seedlings into individual pots and how to apply the nitrogen and specific rates required of the test; showing no initiative in learning how to run growth chamber experiments; not beginning a pennycress experiment in a timely manner; going to Florida for vacation over spring break when he should have been working; ruining an experiment due to aphid infestation by failing to check plants and the growth chamber and not noticing aphid infestation; failing to maintain and harvest pennycress plots in June 2011; not obtaining a scientific sample of pennycress specimens; failing to harvest a block of wild pennycress near campus; having poor written communication skills and inattention to detail, causing Dr. Phippen to rewrite things delivered to him by Claimant; failing to follow Dr. Phippen's instructions regarding planting of winter pennycress; failing to produce a publishable manuscript on pennycress while Dr. Phippen was out of the country; failing to maintain and/or provide Dr. Phippen a lab book; being unable, unwilling, or uninterested in using or learning how to use a basic piece of farm equipment.

Claimant disputes almost every factual assertion proffered by Respondent. In particular, Claimant denies Dr. Phippen ever advised him of performance deficiencies. He steadfastly maintains that there was never a six month conference as suggested by Dr.

Phippen. On cross examination Dr. Phippen admitted that most of his criticisms were made verbally to Claimant and not in writing. Claimant suggests that because Dr. Phippen's criticisms were not in writing, Dr. Phippen's assertions cannot be proven. Claimant maintains that WIU formulated no specific justifications for his termination until after he initiated this lawsuit. These justifications are essentially set forth in the first affirmative defense to its Answer. Claimant further maintains that to the extent there is any assessment of Claimant's performance, it is conclusory and provides neither specifics nor anecdotes of shortcomings on Claimant's part.

Claimant maintains that his research was competent and that he completed research and prepared an article that Dr. Phippen later published under his own name. Claimant also argues that he initiated a new pennycress experiment shortly prior to his termination which was ultimately successful. Claimant maintains his October 2010 experiment regarding the influence of nitrogen and sulfur on a pennycress yield did not result in a published study because the conclusion was that the elements had no influence on the pennycress yield.

Claimant maintains that he did maintain a laboratory notebook. He further maintains he was well versed in scientific research and that his analysis resulted in a publishable manuscript by Dr. Phippen. He also maintains that he did know how to perform field maintenance skills, relying primarily on his experience in obtaining masters and doctorate degrees in agronomy.

He agrees he did not attend the conference, but says it was with the blessing of Dr. Phippen. He says there is no record that Respondent ever notified him of gross time abuses and signed off on all his time sheets. Claimant maintains he could communicate well in the English language as evidenced by his degrees. Finally, Claimant argues that he completed the data base as instructed.

[*105] ANALYSIS

Existence of a contract The parties do not dispute the existence of a contract, so the first element of a breach of contract claim has been met. However, Claimant has failed to carry his burden on the remaining elements.

Claimant's performance under the contract Notwithstanding the numerous disputed points between the parties, the contract is very broad and nonspecific as to what Respondent is required to show in order to justify terminating the contract. The letter gives Respondent discretion as it provides that Claimant's employment is "contingent upon successfully completing an annual review of work performance after 12 months."

The parties do not dispute that the person primarily responsible for making this determination of Claimant's performance was Dr. Phippen. While Claimant disagrees with Dr. Phippen's conclusions as to his performance, there is no evidence to suggest that Dr.

Phippen did not honestly believe the criticisms he made regarding Claimant's work performance. The conclusion that a person does not show initiative is inherently subjective in the eye of a supervisor. However, Respondent provided several examples where Claimant did not show initiative. Respondent also presented evidence that Claimant was not detail oriented and failed to notice the presence of aphids on his own experiment.

Dr. Phippen also cited several examples of having to re-write Claimant's written work product. Respondent had a good faith basis to conclude that Claimant was not meeting his performance obligations, and the preponderance of the evidence demonstrates that Claimant was not meeting all of his obligations under the contract.

No breach of contract by Respondent The contract was very broad and non-specific as to what, if anything, was required in the way of feedback from Respondent to Claimant prior to his 12 month annual review. A plain reading of the employment letter does not require any feedback prior to 12 months.

The Court does not find Claimant's testimony credible that no feedback occurred. The Court does find Dr. Phippen's testimony credible that he brought numerous performance deficiencies to Claimant's attention. In Dr. Phippen's view, Claimant was not adequately completing the tasks assigned to him, of which numerous examples were made. The evidence is clear that Claimant was aware that Dr. Phippen would be primarily responsible for making the determination as to whether Claimant "successfully completed" his annual review. Dr. Phippen's view was that Claimant did not successfully complete his annual review as demonstrated by the series of examples. Claimant raises challenges to the validity of these examples, but not enough for the Court to conclude that Claimant's version of the events is more likely true than not.

Claimant has also failed to carry his burden of proof that anything more was required of WIU in the way of process beyond what he received. The Court finds that Claimant was put on notice of performance issues during the first year, even though nothing in the contract required it. The Court further finds that Respondent concluded in good faith, [*106] based on Dr. Phippen's stated performance deficiencies, that Claimant did not successfully perform as promised.

Claimant argues that Respondent needs to show that it had "cause" to terminate him.

However, there is nothing in the contract referencing cause. Instead, the contract requires a successful completion of the annual review. For the reasons stated above, Claimant has not proven the elements of a breach of contract, but assuming, arguendo, that cause was required, Respondent has demonstrated that it had cause to terminate Claimant's employment contract.

Claimant did not successfully complete his annual review with Dr. Phippen for the reasons stated above. Claimant does not agree with those reasons. The Court finds Dr. Phippen's testimony credible that he put Claimant on notice of performance deficiencies even though nothing in the offer of employment required him to do so.

DAMAGES

Because Claimant has failed to carry his burden of proof on two key elements of his breach of contract action, the Court has no occasion to consider damages.

CONCLUSION

Claimant has not established that he met his obligations under the contract or that Respondent breached the contract. Wherefore, for the above and foregoing reasons, the Court denies Claimant's claim in its entirety.