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FOURTH DIVISION
JUNE 26, 2003

JUSTICE HARTMAN delivered the opinion of the court:

Plaintiff Kevin Geary brought a declaratory judgment actionagainst his former employer defendant Telular Corporation. CountI alleged that defendant breached an agreement to pay plaintiffcommissions by modifying plaintiff's commission plan. Count IIalleged that defendant breached the modified commission plan. Incount III, plaintiff alleged retaliatory discharge claiming thatdefendant terminated him because he asserted his rights under,inter alia, the Illinois Wage Payment and Collections Act (IWPCA)(820 ILCS 115/1 et seq. (West 2000)). Count IV, which namedMotorola, Inc. (Motorola) as a respondent in discovery, was non-suited on August 5, 1999.

Plaintiff was employed as a regional sales manager bydefendant in October 1993. Plaintiff signed an employmentagreement on May 3, 1994, which stated that his employment was at-will. In March 1995, plaintiff was assigned to the MotorolaAccount Team. In March 1995 plaintiff was informed that hiscommissions were to be "paid on a monthly basis for product shippedto Motorola at a rate of .3% based on revenue generated." (Emphasis in original.) On September 6, 1995, plaintiff'scompensation plan provided for monthly commissions equal to .5% "ofall Motorola revenues generated by the Motorola Account Team."

The Motorola Account Team, including plaintiff, was working tohave defendant selected as Motorola's supplier of fixed wirelessterminals (FWTs) to Motorola's customer in Hungary. This wasreferred to as the Motorola-Hungary project. On September 29,1995, Motorola awarded defendant the contract for the supply ofFWTs for Motorola-Hungary. The award stated that it was contingenton defendant's ability to do certain things. John Schoen, aMotorola executive, testified by deposition that the September 29,1995 document was an offer of an award to which a counteroffer wasmade by defendant. He further stated that negotiations continuedbetween the parties until March 7, 1996, when the parties enteredinto a purchase order.

Defendant underwent a reorganization in late 1995 and early1996. All members of the Motorola Account Team except forplaintiff were terminated. On February 29, 1996, as part of thereorganization, plaintiff was promoted to the position of directorof business development-Motorola. On April 12, 1996, defendantinformed plaintiff that his compensation plan in the new positionwould consist of a base salary of $65,000 and a quarterlycommission based on a percentage of a target plan rather than apercentage of revenues generated. Plaintiff verbally objected tothe change.⁽¹⁾ Plaintiff received payments of $6,000 each in Julyand November 1996 under the new plan.

Kenneth E. Millard, president of defendant, testified bydeposition that when the April 1996 plan was introduced, plaintiffwas told that he would not get commissions based on the old plan. Everyone, including plaintiff, had been paid commissions earned upuntil that point and were then put on the new plan going forward. Millard explained that as part of the April 1996 plan, plaintiffwas given a guaranteed minimum commission of $6,000 for the firstfew quarters in recognition of his prior work on the Motorolaaccount. Plaintiff was the only employee given the guaranteedminimum commission.

Plaintiff was fired on February 12, 1997.

Defendant successfully moved for summary judgment on counts Iand III.⁽²⁾ Plaintiff unsuccessfully moved for reconsideration withregard to count I. Plaintiff appeals both the grant of summaryjudgment on counts I and III and the denial of his motion toreconsider with regard to count I.

Summary judgment will be granted when the pleadings,depositions, exhibits, and affidavits on file reveal no genuineissue as to any material fact and establish that the moving partyis entitled to judgment as a matter of law. 735 ILCS 5/2-1005(West 2000); Outboard Marine Corp. v. Liberty Mutual Insurance Co.,154 Ill. 2d 90, 607 N.E.2d 1204 (1992) (Outboard Marine). Allevidence must be construed in the light most favorable to thenonmoving party and most strictly against the moving party. Gatlinv. Ruder, 137 Ill. 2d 284, 560 N.E.2d 586 (1990). Appellate reviewof orders granting summary judgment is de novo (Outboard Marine,154 Ill. 2d at 101), and such an order will be reversed only if amaterial issue of fact is found to exist. Finn v. Dominick's FinerFoods, Inc., 244 Ill. App. 3d 278, 614 N.E.2d 358 (1993).

Plaintiff first contends that the circuit court erred ingranting summary judgment in favor of defendant on count I. Defendant responds that summary judgment properly was grantedbecause plaintiff, an at-will employee, accepted the modifiedcompensation plan when he continued to work and receive commissionsunder the April 1996 plan.

When an employment agreement is terminable at will, it may bemodified by the employer as a condition of its continuance. Ohlemeier v. Community Consolidated School District No. 90, 151Ill. App. 3d 710, 502 N.E.2d 1312 (1987); Wyatt v. Dishong, 127Ill. App. 3d 716, 469 N.E.2d 608 (1984) (Wyatt); Garber v. HarrisTrust & Savings Bank, 104 Ill. App. 3d 675, 432 N.E.2d 1309 (1982). This right to modify unilaterally at-will employment terms appliesto modifying compensation terms. Wyatt, 127 Ill. App. 3d at 720. When an at-will employee continues to work after a change incommission plan, he is deemed to have accepted the change.Schoppert v. CCTC International, Inc, 972 F. Supp. 444 (N.D. Ill.1997) (Schoppert).

In Schoppert, plaintiff, an at-will employee, alleged that hisemployer unilaterally modified his compensation plan once in 1991and again in 1994. With regard to the 1991 modification, theemployer held a meeting and announced that the commission structurewould change. Plaintiff objected and was told that was the plan. Despite subsequent verbal objections, plaintiff continued to workafter the change in commission structure. The court found thatplaintiff's "continuing to work over two and one half years whilereceiving commissions under the new structure must be seen in legalterms as an acceptance of the 1991 Modification, grudging andprotest-filled as that acceptance may have been." Schoppert, 972F. Supp at 447.

Plaintiff argues that the present case is more akin to thesecond modification (1994 modification) in Schoppert, on whichsummary judgment was not granted. The court found a question offact regarding plaintiff's acceptance of the 1994 modificationwhere it was proposed via letters which sought plaintiff'ssignature as evidence of acceptance and plaintiff never signed theletters. Moreover, even though the 1994 modification was proposedin July 1994, the employer continued to operate under the formerplan until March 1995 and continued to negotiate with plaintiffuntil January 1996. Such facts simply are not present in the caseat bar.

It is undisputed that plaintiff was an at-will employee. It isfurther undisputed that plaintiff continued to work for defendantfor nine months after the April 1996 modification to his commissionplan. Moreover, plaintiff accepted commissions paid under the newplan.

Plaintiff does not dispute defendant's right to makeprospective changes to plaintiff's compensation plan. Rather,plaintiff argues that when defendant unilaterally changedplaintiff's compensation plan in April 1996, the commissions on theMotorola-Hungary project already were earned. Plaintiff concedesthat pursuant to all the compensation plans, the commissions werepayable when the product shipped as long as he was employed bydefendant, but argues that they were earned when the buyer "agreedto purchase," here September 29, 1995, when Motorola awardeddefendant the contract to supply FWTs for the Motorola-Hungaryproject. Plaintiff claims, therefore, that he was entitled tocommissions for any product that shipped to Motorola-Hungarybetween September 29, 1995, and February 12, 1997, when he wasterminated.

The record establishes that the sale was not complete onSeptember 29, 1995. The September 29, 1995 award indicated that itwas contingent on defendant's ability to do several things. JohnSchoen, a Motorola executive, testified by deposition that theSeptember 29 document was not a contract, but an offer of an awardto which defendant presented a counter-offer. He further statedthat negotiations continued between defendant and Motorola fromSeptember 29, 1995 until at least March 7, 1996, when Motorolapresented an initial purchase order.

Defendant responds that plaintiff's commissions were not tiedto the completion of sales discussions or to a commitment topurchase. Rather, per the written compensation plans, commissionswere not earned until the product was shipped. The March 1995 planstated that commissions would be "paid on a monthly basis forproduct shipped to Motorola at a rate of .3% based on revenuegenerated." (Emphasis in original.) The September 6, 1995 planincreased the rate to .5%. Millard, president of defendant,testified by deposition that sales meant product shipped. Ifproduct did not ship, an employee was not entitled to anycommission.

In support of his position regarding when commissions wereearned, plaintiff presents only his affidavit which states "that myunderstanding of [defendant's] use of the term 'revenue generated'is that it means the agreement or commitment by Motorola topurchase FWTs from [defendant]." Plaintiff further averred "thatin practice, commissions were earned upon customer commitment andpaid upon shipment." Affidavits offered in opposition to a motionfor summary judgment must not contain conclusions, but evidentiaryfacts to which the affiant is capable of testifying. Webber v.Armstrong World Industries, Inc., 235 Ill. App. 3d 790, 601 N.E.2d286 (1992). Unsupported assertions, opinions, and self-serving orconclusory statements do not comply with Supreme Court Rule 191(a)(145 Ill. 2d R. 191(a)). Jones v. Dettro, 308 Ill. App. 3d 494,720 N.E.2d 343 (1999).

There is no issue of fact that commissions were earned whenproduct shipped. The question then is whether or not any productshipped to Motorola prior to the April 1996 change in plaintiff'scommission plan. Plaintiff cites the Seventh Circuit's statementin the fact section of its opinion in Houben v. Telular Corp., 231F.3d 1066 (2000)⁽³⁾ (Houben), that defendant "eventually shipped$8.586 million of product to Motorola in 1996 and $21.190 millionin 1997." Houben does not specify when in 1996 shipments were made. Moreover, plaintiff admits in his response to defendant'smotion for summary judgment that product shipped incident to theMotorola-Hungary project from May 1996 through the middle of 1997.

Because no product had shipped prior to the April 1996 changein plaintiff's compensation plan, no commission on the Motorola-Hungary account had been earned under the old plan when the planchanged. Millard testified by deposition, that when the new planwas introduced everyone, including plaintiff, was paid for anycommissions that had been earned up until that point and were thenput on the new plan going forward. He further stated thatplaintiff was given a guaranteed minimum commission of $6,000 perquarter for the first few quarters under the new plan inrecognition for his prior work on the Motorola account. It isundisputed that plaintiff accepted these guaranteed minimumcommission payments.

Defendant had the right to change unilaterally plaintiff'scompensation plan because plaintiff was an employee at-will. Plaintiff accepted the April 1996 modifications to the compensationplan when he accepted payment of commissions under the April 1996plan and continued employment. See Schoppert, 972 F. Supp. at 447.The circuit court did not err in granting summary judgment in favorof defendant on count I.

Plaintiff next contends that the circuit court erred ingranting summary judgment in favor of defendant on count III, whichalleged retaliatory discharge as a result of plaintiff's allegeddemands for payment of commissions under the IWPCA.

The tort of retaliatory discharge is a limited and narrow exception to the general rule that an at-will employee isterminable at any time for any or no cause. Paris v. CherryPayment Systems, Inc., 265 Ill. App. 3d 383, 638 N.E.2d 351 (1994)(Paris). A valid claim for retaliatory discharge requires ashowing that an employee has been (1) discharged; (2) inretaliation for the employee's activities; and (3) that thedischarge violates a clearly mandated public policy. Paris, 265Ill. App. 3d at 385. Illinois courts have applied the tort ofretaliatory discharge in only two situations: (1) where thedischarge stems from asserting a worker's compensation claim(Kelsay v. Motorola, Inc, 74 Ill. 2d 172, 384 N.E.2d 353 (1978))and (2) where the discharge is for certain activities referred toas "whistle-blowing" (Palmateer v. International Harvestor Co., 85Ill. 2d 124, 421 N.E.2d 876 (1981) (Palmateer)). Jacobson v.Knepper & Moga, P.C., 185 Ill. 2d 372, 706 N.E.2d 491 (1998). Other than these two circumstances, however, Illinois courtsconsistently have refused to expand the tort to encompass a privateand individual grievance. See Price v. Carmack Datsun, Inc, 109Ill. 2d 65, 485 N.E.2d 359 (1985); McGrath v. CCC InformationServices, Inc., 314 Ill. App. 3d 431, 731 N.E.2d 384 (2000)(McGrath); Eisenbach v. Esformes, 221 Ill. App. 3d 440, 582 N.E.2d196 (1991); Abrams v. Echlin Corp., 174 Ill. App. 3d 434, 528N.E.2d 429 (1988) (Abrams). The supreme court repeatedly hasemphasized the goal of restricting the tort of retaliatorydischarge. See Fisher v. Lexington Health Care, Inc., 188 Ill. 2d455, 467, 722 N.E.2d 1115 (1999) (Fisher) (noting that the court"has consistently sought to restrict the common law tort ofretaliatory discharge"); Zimmerman v. Buchheit of Sparta, Inc., 164Ill. 2d 29, 37-38, 645 N.E.2d 877 (1994) (Zimmerman) (noting thatthe supreme court has "expressed its disinclination to expand thetort of retaliatory discharge.") There is no precise definition ofwhat constitutes a clearly mandated public policy. In general,public policy concerns what is right and just and what affects thecitizens of the State collectively. Palmateer, 85 Ill. 2d at 130. Merely citing a constitutional or statutory provision in acomplaint will not give rise to a retaliatory discharge cause ofaction. McGrath, 314 Ill. App. 3d at 440. In order to constitutea clearly mandated public policy exception justifying applicationof the tort of retaliatory discharge, the matter "must strike atthe heart of a citizen's social rights, duties, andresponsibilities." Palmateer, 85 Ill. 2d at 130.

Illinois courts have on several occasions refused to expandthe tort of retaliatory discharge to claims under the IWPCA findingthat a discharge allegedly in retaliation for complaints aboutunpaid wages under the IWPCA does not violate a clearly mandatedpublic policy. McGrath, 314 Ill. App. 3d at 440-41; Abrams, 174Ill. App. 3d at 440, 442. In McGrath, the court noted that thepolicy concerns underlying the IWPCA are economic. The disputeover plaintiff's conditional stock options and calculation of abonus was economic in nature and did not "strike at the heart" ofplaintiff's social rights, duties, and responsibilities. Plaintiff's claim was more in the nature of a private andindividual grievance insufficient to justify a claim of retaliatorydischarge.

Plaintiff admits in his brief that if McGrath is followed,summary judgment properly was granted in favor of defendant. Plaintiff argues, however, that the facts of this case support anexception to the McGrath rule. According to plaintiff, theevidence in this case combined with the facts of Houben, raise agenuine issue of material fact regarding the existence of a patternof behavior by defendant of wrongfully terminating employees oncethey had produced the desired results, but prior to paying themcommissions. Such behavior, plaintiff argues, would strikesufficiently at "the heart of the citizen's social rights, duties,and responsibilities" to make the actions of defendant a violationof a clearly mandated public policy.

The record is devoid of any evidence of such a pattern ofbehavior. Moreover, plaintiff did not plead such a pattern ofbehavior in his complaint. The supreme court's stated reluctanceto expand the tort of retaliatory discharge militates againstcreating such an exception to the McGrath rule. See Fisher, 188Ill. 2d at 467; Zimmerman, 164 Ill. 2d at 37-38.

In granting summary judgment the circuit court stated "caselaw holds that it is against the public policy of Illinois todischarge an employee for asserting his right to wages due underthe [IWPCA]. However, there is no persuasive evidence before thecourt that plaintiff was discharged in retaliation for assertinghis rights to alleged commission due to him." As discussed above,Illinois law ineluctably holds that a discharge allegedly inretaliation for complaints of unpaid wages under the IWPCA does notviolate a "clearly mandated public policy." The appellate courtmay affirm the grant of summary judgment for any reason thatappears in the record, regardless of whether that reason is thereason relied upon by the circuit court. Leavitt v. Farwell TowerLtd. Partnership, 252 Ill. App. 3d 260, 625 N.E.2d 48 (1993). Because there is no genuine issue of material fact regardingwhether plaintiff's discharge violated a "clearly mandated publicpolicy", summary judgment properly was granted in favor ofdefendant.

Accordingly, for the reasons set forth above, the judgment ofthe circuit court of Cook County is affirmed.

Affirmed.

THEIS, P.J. and KARNEZIS, J., concur.

1. Plaintiff points to an undated memo from his boss RayO'Leary proposing a solution to the Motorola-Hungary commissionissue as evidence of his continued objections to the April 1996plan. This memo is contained only in the appendix to plaintiff'sbrief and is not part of the record on appeal. Therefore, it cannot be considered by this court. Jenkins v. Wu, 102 Ill. 2d 468,468 N.E.2d 1162 (1984).

2. The circuit court denied defendant's request for summaryjudgment on count II. Following a jury trial on count II,judgment was entered in favor of plaintiff and against defendantin the amount of $25,000. That judgment has been fully paid andis not part of this appeal.

3. Houben involved the claims of Susan Cooper Houben, theoriginal head of the Motorola-Hungary account team who was firedduring the re-organization, for commissions she claimed sheearned while working for defendant.