2022 IL App (1st) 211040-U Order filed: August 18, 2022
FIRST DISTRICT FOURTH DIVISION
No. 1-21-1040
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
ZONGZONG (NICOLE) TAO, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) ) No. 21 L 003870 SIMPLEX INVESTMENTS, LLC, ) an Illinois Limited Liability Company; ) ERIK SWANSON; and ) Honorable MATT ZIMMERMAN, ) Michael F. Otto ) Judge, presiding. Defendants-Appellees. ) ______________________________________________________________________________
JUSTICE ROCHFORD delivered the judgment of the court. Presiding Justice Reyes and Justice Martin concurred in the judgment.
ORDER
¶1 Held: We affirm the circuit court’s dismissal of plaintiff’s complaint, finding that terminated employee could not state a claim that she was entitled to an “earned bonus” under the Illinois Wage Payment Collection Act (Act) (820 ILCS 115/1 et seq. (West 2020)).
¶2 Plaintiff-appellant, Zongzong (Nicole) Tao, filed a one-count complaint against
defendants-appellees, Simplex Investments, LLC (Simplex), her former employer; Erik Swanson,
Simplex’s Chief Executive Officer; and Matt Zimmerman, Simplex’s Head of Trading
(collectively, defendants), for a violation of the Illinois Wage Payment Collection Act (Act) (820
ILCS 115/1 et seq. (West 2020)), alleging that defendants, at the time of plaintiff’s termination, No. 1-21-1040
failed to pay her an earned bonus for her “excellent performance” in 2020. The circuit court granted
defendants’ motion to dismiss with prejudice pursuant to section 2-615 of the Illinois Code of Civil
Procedure (Code) (735 ILCS 5/2-615 (West 2020)) finding that the applicable bonus provision
was discretionary and not enforceable under the Act and denied her motion for leave to amend the
complaint. On appeal, plaintiff argues that she sufficiently alleged that her performance was
“excellent” as required by the bonus provision and was entitled to an earned bonus for 2020. She
further argues that the circuit court erred in finding that an ambiguity in the bonus provision
rendered her annual bonus discretionary and by failing to allow discovery to uncover extrinsic
evidence of the actual meaning of the provision. We affirm.
¶3 In her complaint for a violation of the Act, plaintiff alleged that, on November 26, 2014,
Simplex, by letter (offer letter), extended her an offer of employment to work as an options trader.
The offer letter, which was attached to the complaint, explained the terms of plaintiff’s
employment and provided that she would report to Swanson. As relevant here, the offer letter
included a “bonus eligibility” provision, stating: “Upon satisfactory completion of the 90-day
probationary period, you will be eligible for participation in the company’s bonus plan. This
discretionary bonus plan pays annual year-end bonuses for excellent performance.” Plaintiff
signed the offer letter and began her employment in January 2015.
¶4 Plaintiff alleged that, from the beginning of her employment, she and her colleagues
endured a hostile work environment stemming from the conduct of Zimmerman, a fellow options
trader. At her year-end review in 2016, plaintiff complained about Zimmerman’s conduct and in
2017, “Simplex [took] action to correct Zimmerman’s behaviors.” In 2019, Simplex promoted
Zimmerman to head of trading, but he allegedly continued to be cruel and hostile toward plaintiff.
-2- No. 1-21-1040
¶5 From 2015 through 2019, plaintiff received an annual bonus, ranging from $275,000 to
$600,000, which depended on Simplex’s overall profitability for the year under consideration.
Plaintiff alleged that Swanson and Zimmerman were personally and chiefly responsible for setting
these bonuses and that the bonuses were anticipated elements of the annual compensation package
for traders, developers, c-suite executives, and front office staff members.
¶6 In December 2020, plaintiff participated in a year-end performance review with Swanson
and Zimmerman. Plaintiff alleged that she did not receive any criticism or negative feedback on
her performance and was not informed that her work was lacking or insufficient.
¶7 On January 25, 2021, plaintiff was called into a supplemental performance review with
Swanson, Zimmerman, and a representative from Simplex’s human resource department. Plaintiff
was informed that a programming bug had existed in a trading algorithm that had been used by
Simplex in January 2021, which resulted in the miscalculation of client fees related to trades.
Zimmerman faulted plaintiff for not noticing the bug. Plaintiff alleged that she had no formal
background in computer programs and that developers, not options traders, create the algorithms.
The bug was corrected, but plaintiff was stripped of her responsibilities for building out and leading
Simplex’s retail options trading business. The developer, responsible for the bug, was not
disciplined or terminated.
¶8 On February 8, 2021, plaintiff was called into a third “performance review” with Swanson,
Zimmerman, and a representative from the human resource department and was fired, effective
immediately.
¶9 The next day, Simplex informed its traders of the amount of their bonuses for 2020,
allegedly Simplex’s most profitable year. Plaintiff did not receive a bonus but contended that her
performance had been “excellent.”
-3- No. 1-21-1040
¶ 10 Defendants filed a motion to dismiss asserting that the bonus provision in the offer letter
was discretionary and therefore not enforceable under the Act. In the alternative, defendants argued
that even if the bonus was not considered discretionary, plaintiff’s performance, as alleged in the
complaint, was not “excellent,” and she was therefore not entitled to a bonus in 2020.
¶ 11 Plaintiff responded, arguing that the offer letter guaranteed her a bonus for “excellent
performance” and formed an unequivocal promise to pay her a bonus for her performance in 2020,
which she alleged had been excellent. Plaintiff maintained that defendants’ arguments that her
performance was not excellent demonstrated that there was a factual issue requiring discovery and
precluded dismissal of her complaint. She further argued that because defendants had provided her
a bonus in each of her first five years of employment, defendants had created an anticipated benefit.
In the alternative, plaintiff sought leave to “amend her complaint to address any deficiencies under
section 2-615.”
¶ 12 After a hearing on the motion, 1 the circuit court issued a written ruling granting the motion
to dismiss with prejudice and denying plaintiff’s motion to amend the complaint. The court
concluded that the language in the offer letter constituted a discretionary bonus and not an earned
bonus. The circuit court’s conclusion was based on its finding that:
“The bonus language in [plaintiff’s] offer letter is a clear-cut example of a discretionary
bonus. Not only does the offer letter describe itself as a ‘discretionary bonus plan,’ receipt
of a bonus is expressly conditioned on ‘excellent performance.’ Evaluation on an
employee’s ‘performance’ is literally the example given by the [Illinois Department of
1 The report of proceedings on the hearing is not part of the record on appeal.
-4- No. 1-21-1040
Labor (Department)] of an ‘indefinite or uncertain’ term which renders a bonus
discretionary, rather than earned. [Citation.].”
¶ 13 Plaintiff timely appealed.
¶ 14 On appeal, plaintiff first argues that the circuit court erred in granting defendants’ motion
to dismiss the complaint pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2020)).
Plaintiff maintains that pursuant to the offer letter, she was entitled to an “earned bonus,” while
defendants argue that based on the plain language of the offer letter, plaintiff’s bonus was merely
“discretionary” and not enforceable under the Act.
¶ 15 A section 2-615 motion to dismiss attacks the legal sufficiency of a complaint. Lutkauskas
v. Ricker, 2015 IL 117090, ¶ 29. When reviewing a motion to dismiss pursuant to section 2-615,
we accept as true all well-pleaded factual allegations in the complaint and draw all reasonable
inferences in favor of the plaintiff. Sherman v. Ryan, 392 Ill. App. 3d 712, 722 (2009). We need
not consider mere conclusions of law or fact unsupported by specific factual allegations. Id. at 722.
An exhibit is incorporated into the complaint, and the exhibit controls where there is a
contradiction between an exhibit and the allegations of the complaint. Gagnon v. Schickel, 2012
IL App (1st) 120645, ¶ 18. We review a dismissal under section 2-615 de novo. Lutkauskas, 2015
IL 117090, ¶ 29.
¶ 16 The parties’ dispute presents a question of statutory interpretation, an issue we also review
de novo. Schultze v. ABN AMRO, Inc., 2017 IL App (1st) 162140, ¶ 2 (citing Andrews Kowa
Printing Corp., 351 Ill. App. 3d 668, 675 (2004)). The rules applicable to statutory interpretation
are well-established and summarized as to the Act in McLaughlin v. Sternberg Lanterns, Inc., 395
Ill. App. 3d 536, 541 (2009):
-5- No. 1-21-1040
“In interpreting the [] Act, this court must ascertain and give effect to the intent of the
legislature. [Citation.] The most reliable indicator of the legislature's intent is the language
of the statute, which is given its plain, ordinary, and popularly understood meaning.
[Citation.] Furthermore, when interpreting a statute, a court must presume that when the
legislature enacted the law, it did not intend to produce absurd, inconvenient, or unjust
results. [Citation.]”
¶ 17 The Act provides that “[e]very employer shall pay the final compensation of separated
employees in full, at the time of separation, if possible, but in no case later than the next regularly
scheduled payday for such employee.” 820 ILCS 115/5 (West 2020). To plead a violation of the
Act, a plaintiff must allege that “(1) the defendant was an ‘employer’ as defined in the [] Act; (2)
the parties entered into an ‘employment contract or agreement’; and (3) the plaintiff was due ‘final
compensation.’ ” Schultze, 2017 IL App (1st) 162140, ¶ 22 (quoting Catania v. Local 4250/5050,
359 Ill. App. 3d 718, 724 (2005)).
¶ 18 The parties do not dispute whether plaintiff adequately alleged that defendants were
“employers” 2 or that the parties entered into an employment contract or agreement. Instead, the
parties dispute whether plaintiff sufficiently alleged, or could allege that she was due “final
compensation.” The Act defines “final compensation” as “wages, salaries, earned commissions,
earned bonuses, and the monetary equivalent of earned vacation and holidays, and any other
compensation owed the employee by the employer pursuant to an employment contract or
2 The complaint alleges that Swanson and Zimmerman were “employers” as defined under the wage Act because they knowingly permitted Simplex to violate the Act by failing to pay plaintiff an accrued annual bonus that she earned in 2020.
-6- No. 1-21-1040
agreement between the 2 parties.” (Emphasis added). 820 ILCS 115/2 (West 2020). The issue here
is based on the meaning of earned bonuses.
¶ 19 Although the Act does not define “earned bonus,” this court has held that an “earned bonus”
is one in which an employee was unequivocally promised a bonus by his or her employer.
McLaughlin, 395 Ill. App. 3d at 544 (discussing federal court cases interpreting the Act). This
court has further recognized that an employee is not entitled to a bonus pursuant to section 2 of the
Act where there was no unequivocal promise to pay a bonus. Id. This distinction between whether
or not the employee was unequivocally promised a bonus by the employer in determining whether
a bonus is owed is consistent with the Department regulations construing the Act. Id.
¶ 20 The Act charges the Department with enforcement of the Act (820 ILCS 115/11 (West
2020)) and authorizes the Director of Labor and his representatives to promulgate regulations to
administer and enforce the provisions of the Act. We give substantial weight and deference to
these regulations, “as courts appreciate that agencies can make informed judgments upon issues
that are related to their areas of experience and expertise.” McLaughlin, 395 Ill. App. 3d at 544.
¶ 21 The regulations created by the Department provide that in order to receive payment under
the Act, a bonus must be “earned” and not “discretionary or gratuitous.” 56 Ill. Adm. Code 300.500
(2014). An employee is entitled to an “earned bonus,” under the Act when there is:
“an unequivocal promise by the employer and the employee has performed the
requirements set forth in the bonus agreement between the parties and all of the required
conditions for receiving the bonus set forth in the bonus agreement have been met.” Id.
§ 300.500(a).
A discretionary bonus is defined as:
-7- No. 1-21-1040
“when the terms associated with the earning of the bonus are indefinite or uncertain, such
as bonus being upon a positive evaluation of the ‘employee’s performance’ and not when
the earning of a bonus is based on objective factors such as length of service, attendance,
or sign-on or relocation incentives.” Id. § 300.500(d).
¶ 22 Here, plaintiff’s allegations did not make a sufficient showing that she was entitled to an
earned bonus under the Act. The offer letter, which governs the terms of plaintiff’s bonus, states
that plaintiff “will be eligible for participation in the company’s bonus plan,” a “discretionary
bonus plan” that pays employees for “excellent performance.” The terms of the bonus provision
show that defendants had discretion to pay annual bonuses and that the payment was conditional
and dependent on a subjective “ ‘positive evaluation’ of [plaintiff’s] performance and not ***
based on objective factors such as length of service, attendance, or sign-on or relocation
incentives” (see id.). The terms of the offer letter did not form an unequivocal promise to pay a
bonus and therefore the bonus was discretionary.
¶ 23 McLaughlin, supports this conclusion. 395 Ill. App. 3d at 540. In McLaughlin, a former
employee, filed a complaint seeking an earned bonus pursuant to the Act. The plaintiff’s bonus
was to be based on any annual increase in the percentage of the plaintiff’s sales. Id. Prior to the
end of the year, defendant terminated plaintiff’s employment for cause and plaintiff filed a
complaint seeking a pro rata share of his bonus. Id. at 540-41. The circuit court granted the
defendant’s motion for summary judgment. Id. On appeal, this court affirmed the circuit court’s
finding that the “bonus was clearly conditional, dependent on whether sales for defendant
increased over the previous year,” and not guaranteed to be paid. Id. at 544.
¶ 24 Here, similar to McLaughlin, there was no unequivocal promise or guarantee that the
plaintiff would be paid a bonus. As discussed above, defendants, based on the terms of the bonus
-8- No. 1-21-1040
provision, had discretion to pay a bonus, which was dependent on a subjective positive evaluation
of plaintiff’s performance. Therefore, the circuit court did not err in dismissing the complaint as
plaintiff did not sufficiently allege that she was entitled to an “earned bonus” under the Act.
¶ 25 Plaintiff, citing McCleary v. Wells Fargo Securities, LLC, 2015 IL App (1st) 141287,
argues that because she met the sole qualifying condition to receive a bonus, excellent
performance, she was entitled to an earned bonus under the Act. We disagree.
¶ 26 In McCleary, plaintiff filed a complaint against his former employer for failure to pay him
an earned bonus upon his termination when his position was eliminated. Id. ¶ 3. To qualify for a
bonus under the plan, plaintiff had to satisfy certain factors including “achievement of corporate
and practice group financial goals, a participant’s performance ratings, compliance with the terms
of the plan, and execution of a trade secret agreement” and bonuses were awarded when bonus
pools were created. Id. ¶ 5. Under the bonus plan, bonus awards could be “adjusted or denied for
any reason.” Id. ¶ 6. At the time of separation, the defendants informed the plaintiff that, if a bonus
pool was created, he would be included. Id. ¶ 8. The circuit court dismissed the complaint finding
that the language of the plan gave defendant “absolute discretion” to award a bonus. Id. ¶ 13. On
appeal, this court reversed the dismissal. Id. We found that plaintiff sufficiently alleged a violation
of the Act where “plaintiff alleged that he was owed a bonus because he met all qualifying events
under the plan, a bonus pool was created, other similarly situated employees in his group were
awarded bonuses, and defendant wrongfully denied and retained plaintiff’s bonus.” Id. ¶ 29.
¶ 27 Plaintiff argues that, similar to McCleary, defendants here made a promise to pay a bonus
in some amount when her annual performance was “excellent.” She maintains that because she
alleged that her performance was “excellent,” all similarly situated employees were awarded an
annual bonus, and defendants wrongfully and arbitrarily withheld her earned bonus, she adequately
-9- No. 1-21-1040
alleged that defendants did not have discretion to award a yearly bonus, but only had discretion in
the amount of the award.
¶ 28 However, unlike in McCleary, where the bonus award depended on objective factors, the
bonus here, as set forth in the offer letter, depended on a subjective factor, a positive evaluation,
and was explicitly discretionary with no guarantee. The offer letter as an exhibit to the complaint
controls over any allegations to the contrary and the circuit court did not err in finding that plaintiff
did not sufficiently allege that she was entitled to an earned bonus. Gagnon, 2012 IL App (1st)
120645, ¶ 18. Even if we could view the bonus provision in the offer letter as an earned bonus,
plaintiff did not allege sufficient facts to show her performance in 2020 was excellent; she provided
merely conclusory statements that her performance had been excellent. Plaintiff’s allegations that
defendants did not provide her with any criticism or negative feedback at her annual review is far
from asserting facts to show her performance in 2020 had been “excellent.”
¶ 29 Plaintiff citing McCleary, 2015 IL App (1st) 141287, and Camillo v. Wal-Mart Stores, Inc.,
221 Ill. App. 3d 614 (1991), next argues that the presence of the word “discretionary” in the bonus
provision of the offer letter did not preclude a finding of an “unequivocal promise” because the
offer letter established the standard by which a bonus would be awarded, “excellent performance.”
As discussed above, the offer letter’s use of “discretionary” is not the only indication that there
was not an earned bonus. The bonus provision as a whole cannot be read as an unequivocal promise
or guarantee that plaintiff would receive a bonus. The offer letter made clear that not only was the
bonus discretionary, the award of a bonus would depend on a subjective performance evaluation.
As discussed, under the Department’s regulations, such a bonus is not an earned one.
¶ 30 Camillo is also distinguishable. In Camillo, this court found that the plaintiff was entitled
to a bonus under the Act, reasoning that the bonus was an earned one as it was dependent on
- 10 - No. 1-21-1040
plaintiff being on the payroll and actively working. Id. The award of a bonus was not tied to his
performance, like the terms in the offer letter, but was tied solely to objective factors.
¶ 31 Plaintiff lastly argues that the circuit court erred in finding that the use of the term
“excellent performance” made the bonus provision ambiguous and therefore made the bonus
discretionary. She further argues that in finding the policy ambiguous, the trial court should have
allowed discovery to develop extrinsic evidence to show the true meaning of the provision in the
offer letter. Plaintiff asserts through discovery she would be able to show that every employee
received a bonus each year and that defendants used specific objective metrics or factors to
determine whether performance was excellent.
¶ 32 However, the circuit court did not find that the provision was ambiguous, instead it found
that the offer letter contained a “clear cut example of a discretionary bonus” in that the use of the
term “excellent performance” made the bonus indefinite and uncertain. The court then properly
found that the bonus was discretionary under the Department regulations which define the nature
of a discretionary bonus and that plaintiff’s complaint failed to allege facts showing that defendants
had violated the Act.
¶ 33 On appeal, plaintiff does not challenge or seek relief from the circuit court’s denial of her
motion for leave to amend the complaint. She has therefore forfeited any argument that the circuit
court erred in denying her motion to file an amended complaint. See Ill. S. Ct. R. 341(h)(7) (eff.
Oct. 1, 2020) (an appellant forfeits points not raised in the initial brief).
¶ 34 For the foregoing reasons, we affirm the circuit court’s dismissal of plaintiff’s complaint
for failure to state a claim for violation of the Act.
¶ 35 Affirmed.
- 11 -