neglect of job responsibilities, is also distinct from, and
dissimilar to, incompetently performing one's job duties. The
plain meaning of neglect of job responsibilities is that the
employee is ignoring his job duties or failing to put forth

an adequate effort. That is a different class of conduct

than lacking the skills to adequately perform one's job
responsibilities. There is no evidence that plaintiff was

not putting forth a sufficient effort. Plaintiff's alleged
unacceptable performance does not fall within the same class of
conduct as those specifically enumerated in the termination for
cause clause. This is especially evident when it is considered
that defendant drafted the contract language and therefore any
ambiguity should be construed against defendant. The evidence
does not support that plaintiff engaged in any conduct that
would fall under the termination for cause clause of the
parties' contract,

Defendant also contends that, even if the employment
contract does not have an express provision permitting
termination for poor performance, such a provision will be read
into the contract. Although not cited by defendant, there is
case law supporting that an employee may be discharged for a
ground that constitutes good cause even if it is not one of the
grounds that is included in a contract's specific list of grounds
for discharge. See Corman Aircraft Corporation v. Weihmiller, 78

F.2d 241 (7th Cir. 1935); H. Vincent Allen & Associates, Inc. vy.

Weis, 63 Ill. App. 3d 285, 379 N.E,2d 765, 772 (1st Dist. 1978)


Unless otherwise noted, the following facts are
undisputed and taken as true for both sides' motions. Defendant
is a pharmaceutical company in the business of developing new
drugs for the treatment of human diseases. Plaintiff is a
research scientist in molecular biology and had experience
operating “knockout mice" laboratories. Plaintiff was hired to
be in charge of defendant's knockout mice activities, which is a
process of studying human genes by identifying comparable mice
genes, removing selected genes, and investigating the results
thereof. There are three phases to such activity. Phase one
consists primarily of gene cloning and the creation of knockout
or targeting vectors. The second phase involves work with
embryonic stem cells, including the introduction of targeting
vectors into embryonic stem cells and the isolation of embryonic
stem cell clones in which one part of a specific gene is knocked
out or targeted. The final phase is the introduction of
embryonic stem cells into a mouse embryo. The knockout mice
laboratory that plaintiff helped set up was located in Israel.

Plaintiff was not represented by an attorney during
contract negotiations. Prior to working for defendant, plaintiff
resided in Illinois and worked at the University of Illinois.
Prior to March 8, 2001, defendant proposed contract language that
would have made plaintiff an at-will employee, Plaintiff
rejected that language and defendant drafted different language
that was incorporated in the final contract dated March 8, 2001.

The parties' contract provided that plaintiff was to begin work


exists as to whether plaintiff's work performance was adequate or
not.

A genuine factual dispute also exists as to the sincerity
of Einat's belief that plaintiff was not performing competently.
In addition to the disputed evidence that plaintiff was actually
performing competently, a dispute as to the sincerity of Einat's
belief is supported by the fact that, prior to the December 4,
2001, plaintiff received no written criticism of his work and no
written documentation of any criticism was created by Einat or
any other employee of defendant. Also, plaintiff states in his
affidavit that, prior to December 4, 2001, he also received no
oral criticism from Binat nor any other employee of defendant.
That testimony, however, is partially disputed by Einat who
testified at his deposition that, shortly before December 4,
2001, he once raised oral questions with plaintiff regarding the
adequacy of plaintiff's findings. It is undisputed that, shortly
after receiving the December 4 letter, plaintiff spoke with Einat
who, contrary to Zurr's suggestion in the December 4 letter, did
not provide plaintiff with any details or explanation regarding
the grounds for his discharge. Neither Einat nor anyone else at
defendant provided plaintiff with any opportunity to respond to
the claims that his work was not competent. Plaintiff also
testified that, in the conversation with Einat that occurred
shortly after his termination, Finat stated that the knockout Jab
was being eliminated because of budget problems. This statement,

which is admissible against defendant as an admission of an


As a result of my decision you will not be

relocated to Cleveland,
Plaintiff was provided two months of pay following termination.

Under the plain language of the contract, plaintiff had a
three-year term of employment as long as two conditions continued
to be met. Plaintiff had to (a) perform in a manner acceptable
to defendant's President and (b) no cause for termination could
exist. As to the first requirement, plaintiff contends this
clause is too vague to be enforceable and would render the three-
year term illusory. Plaintiff also invokes the rule of contract
construction that any ambiguity in this clause should he
construed against defendant since defendant drafted the language.

See Berutti v. Dierks Foods, Inc., 145 Ill. App. 3d 931, 496

N.E.2d 350, 352 (2d Dist. 1986).
Contrary to plaintiff's contention, under Illinois law,
satisfaction clauses in contracts, including employment

contracts, are enforceable. See Beasley v. St. Mary's Hospital

of Centralia, 200 Ill. App. 3d 1024, 558 N.E.2d 677, 682 (Sth
Dist.), appeal denied, 135 Ill. 2d 554, 564 N,E.3d 835 (1990);

Kohler v. Leslie Hindman, Inc., 80 F.3d 1181, 1186-87 (7th Cir.

1996); King v. Telesphere International, Inc., 632 F. Supp. 981,

984 (N.D. Ill. 1986). Purther, Illinois courts have developed
rules for interpreting such clauses. Kohler, 80 F.3d at 1186-87.

{[SlJatisfaction clauses in Illinois come in two
categories: those that make the exercise of
discretion purely subjective and those that
require the exercise of discretion according to
objective factors. The first category includes
satisfaction clauses invoking the feelings, taste


on April 1, 2001 at a starting salary of $120,000 per annum.
Plaintiff's initial assignment was in Israel, following which he
was to be assigned to work in Cleveland, Ohio.

The contract provision most pertinent to the parties'
dispute reads as follows:

6. The terms of this employment agreement
are in place for three years as long as my
performance is acceptable in the judgment of
Quark Biotech's President and no conditions
constituting cause for termination, as defined
below, occur. I acknowledge that this employment
agreement may be terminated by Quark Biotech at
any time for cause, which includes but is not
limited to theft, gross misconduct, conviction of
a felony, insubordination or neglect of my job
responsibilities. In the event of termination
for cause, I will be paid salary continuation for
only two months irrespective of the term
remaining under this employment agreement. I may
terminate the relationship before the end of
three years upon giving notice. All rights and
obligations of both parties terminate upon my
giving of notice.

After returning to the United States, but before
relocating to Cleveland, plaintiff's employment was terminated
effective December 4, 2001. In a letter to plaintiff dated that
day, defendant's President, Daniel Zurr, wrote:

Much to my regret, after carefully
evaluating the results of your work which was
done during your recent stay in Israel, we
reached the conclusion that the performance of
your work was unacceptable,

The scientific results of your work did not
meet our expectations, therefore, we decided to
terminate your employment effective today,
according to section number 6 of your Employment
Agreement, dated March 8th 2001.

I believe you are familiar with the facts
and reasons behind this conclusion, nevertheless,
Dr. Paz Einat is ready to provide you with all
the necessary facts and explanations.


for the evidence ta show that defendant was incorrect or
unreasonable in finding plaintiff's performance to be
unacceptable as long as defendant's President actually,
sincerely, and in good faith believed plaintiff's performance was
unacceptable and that was defendant's motivation for discharging
plaintiff.

Plaintiff's own deposition testimony and his own
affidavit support that he was competently performing the research
work he was assigned to perform. Defendant, however, points to
the testimony of its Chief Scientist, Paz Hinat, who was
plaintiff's direct supervisor. In Fall 2001, Shlomid Giliad
began working in the knockout lab. Einat testified that, in
November 2001, Giliad raised with Binat questions about the
quality of plaintiff's work. Hinat testified that he thereafter
investigated and came to the conclusion that there were problems
with the competency of plaintiff's work. The problems included
poor selection of primers used to perform preliminary chain
reactions, improper controls used in establishing preliminary
reactions, and improper gene interpretation.* The testimony of
Einat supports both that plaintiff was not performing
Satisfactorily and that Binat sincerely believed that. In light

of plaintiff's testimony, however, a genuine factual dispute

4As support for Einat's evaluation of plaintiff's work,
the court relies on Einat's deposition testimony itself. No
reliance is placed on EHinat's after-the~fact memorandum regarding
the reasons for plaintiff's dismissal (Def. Exh. D), which Einat
wrote in 2002, a number of months after plaintiff's discharge.
No foundation is presented supporting that this document is
admissible as a business record or on some other ground.


ae

‘Minute: Order Korm (06/97)

United States District Court, Northern District of (Minois

Name of Assigned Jud; SITTING JUDGE IF
ye Magistrate Judge WILLIAM T. HART OTHER THAN
ASSIGNED JUDGE
CASE NUMBER 03 C5729 DATE JUNE 15, 2004
CASE WILLIAM CHEN vy, QUARK BIOTECH, INC., ete.
TITLE
[Inthe following box (a) indicate the party filing the motion, ¢.g,, plaintiff, defendant, 3rd party plaintitf, and (b) state briefly the nature
MOTION: of the motion heing presented. ]
DOCKET ENTRY:
qd) Oo Filed motion of [ usc listing in “Motion” box above.]
Q) a) Brief in support of motion due _
QB) Oo Answer brief to motion due. _: Reply to answer brief due_
(4) Qo Ruling/Hearing on _setfor at__
(5) 0 Status hearing[held/continued to] {set for/te-set for}on____set for at :
(6) oO Pretrial conference[held/continued to] [sct for/re-set for] on ___ set for _at
(1) Oo Trial[set for/re-set for] on __ ato.
(8) oO (Bench/Jury trial] [Hearing] held/continucd to _ at, -
(9) i) This case is dismissed [with/without] prejudice and without costs[by/agrcement/pursuant to)
OOFRCP4(m) Local Rule 41.1 OFRCP41(a(1) O FRCPA1(a)(2).
qo) =x [Other docket entry] Defendant's motion for summary judgment [17] is granted in part and

denied in part, Plaintiff's motion for summary judgment [14] is granted in part and denicd in part. Defendant
will not be able to proceed on any defense based on plaintiff being discharged for any reason other than
failing to perform his job in a manner acceptable to defendant's President. Count II is dismissed. This case
will be referred to the assigned magistrate judge for the purpose of conducting a settlement conference within
45 days. A status hearing before Judge Hart will be held on September 8, 2004 at 11:00 a.m.

No notices required, advised in open court.

a)

[For further detail see attached Memorandum Opinion and Order. .

4

No notices required. number of notices

Notices mailed by judge’s stuff.

Notitied counsel by telephone,

Tucketing to mail notices.

Mail AO 450 form. dockeling deputy initials

Copy to judge/magistrate judge.

Jie 18, 2004
Mies, - dave miled noise
courttoom we wee
w deputy’s
initials
& Date/time received in man ;
Net gaa etiteal, Clert's Office, mailing vitals



that is cited is the December 4 letter itself.? Similar to
Einat, a genuine factual dispute exists as to whether Zurr
actually believed that plaintiff's performance was unacceptable
and whether plaintiff's performance was the actual motivation for
plaintiff's discharge. There is no evidence that, prioer to
plaintiff's discharge, Zurr actually discussed plaintiff's
performance with Einat or other supervisors or coworkers of
plaintiff or that Zurr was even aware of anything concerning the
quality of plaintiff's work performance.? Also, the facts that
plaintiff was never provided performance guidelines or goals, no
written documentation of poor performance existed prior to
plaintiff's discharge, and that plaintiff was provided no
opportunity to respond to the charges of incompetence would
reasonably support an inference of insincerity. Additionally,
the evidence supporting that plaintiff's lab was eliminated
because of budget problems supports that plaintiff was discharged
for a reason other than the quality of his performance.

On the evidence before the court, a genuine factual
dispute exists as to whether plaintiff was properly discharged

based on his performance not being acceptable to defendant's

Defendant also cites to plaintiff's deposition testimony
in which plaintiff failed to specifically identify any facts of
which he had personal knowledge that would support that Zurr's
assertion as to his performance was not in good faith. Such

testimony from a party is of little or no probative value. See
Fenje v. Feld, 301 F. Supp. 2d 781, 818 (N.D. Tll. 2003).

‘Defendant does cite to testimony that Einat discussed
his memorandum with Zurr, but that would have been well after
plaintiff had already been discharged.


agent, supports that plaintiff's employment was terminated for a
yeason other than the competency of plaintiff's work. A genuine
factual dispute exists as to the budget problems in that Einat
testified that what he told plaintiff was that the knockout lab
might be ended because, following plaintiff's discharge,
defendant had no employee capable of running the lab. For the
foregoing reasons, a genuine factual dispute exists regarding
whether Einat sincerely believed that plaintiff's work was
incompetent and that he should be discharged for that reason.

of course, Einat's subjective motives and beliefs are not
the direct concern regarding whether plaintiff's discharge
breached the employment contract. The question is whether
plaintiff was discharged because plaintiff's performance was not
acceptable in the judgment of Zurr, defendant's President. While
defendant asserts in its Rule 56.1 statements that Zurr discussed
plaintiff's performance with Einat and Einat's supervisor and
that Zurr sincerely believed plaintiff's performance was
unacceptable, most of those assertions are unsupported by any
citation to the record. See Def. Rule 56.1 Stmt. of Material
Facts 94 21-28; Def. Rule 56.1 Stmt. of Additional Facts
(71 51-56. Defendant cites to no deposition testimony of Binat or
Zurr supporting that they discussed plaintiff's performance prior
to his discharge or that Zurr concluded that plaintiff's

performance was unacceptable. The only support for Zurr's belief


or judgment of the party exercising discretion.

When a satisfaction clause conveys this sort of

subjective discretion, it does not, however,

remove all limitations on the exercise of

discretion. The party that has the right to act

according to its personal judgment or within its

sole discretion must still act in good faith.

Id. (citations omitted).

Personal services contracts, such as the present one,
generally fall into the first category involving the subjective
standard. Beasley, 558 N.E.2d at 682, The contract language
also supports such a conclusion because whether plaintiff's
performance was acceptable was left to the “judgment” of
defendant's President. See id.; Kohler, 80 F.3d at 1186. Thus,
the determination of whether plaintiff's performance was
acceptable was reserved for Zurr; he was "the sole judge of his
satisfaction, ‘without regard to the justice or reasonableness of
his decision, and a court or jury cannot say that such party

should have been satisfied when he asserts that he is not.'"

Beasley, 558 N.E.2d at 682 (quoting Ray v. Georgetown Life

Insurance Co., 94 Ill. App. 3d 863, 419 N.E.2d 721, 722 (3d Dist.
1981)). As to the satisfaction clause, plaintiff can only avoid
summary judgment if (a) Zurr did not find plaintiff's performance
unacceptable; (b) Zurr discharged plaintiff for a reason other
than unacceptable performance; or (c) Zurr did not act honestly
and in accordance with defendant's duty of good faith and fair
dealing. Beasley, 558 N.B.2d at 682. The burden of proof is on

plaintiff to make this showing. See id.; RIV VIL, Inc. v.

Tucker, 979 F. Supp. 645, 657 (N.D. I11. 1997). It is not enough


Outlaw,

identify "those portions of the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with the affidavits,
if any, which it believes demonstrate the absence
of a genuine issue of material fact." Logan v.
Commercial Union Ins. Co., 96 F.3d 971, 978 (7th
Cir. 1996) (citing Celotex Corp. v. Catrett,

477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2a
265 (1986) (citation and internal quotation
omitted)). The moving party may discharge this
burden by "'showing'--that is, pointing out to
the district court--that there is an absence of
evidence to support the nonmoving party's case."
Gelotex, 477 U.S. at 325, 106 S. Ct. 2548. Once
the moving party satisfies this burden, the
nonmovant must "set forth specific facts showing
that there is a genuine issue for trial," Fed.
R. Civ. FP. 56(e). “The nonmovant must do

more, however, than demonstrate some factual
disagreement between the parties; the issue

must be 'material.'" Logan, 96 F.3d at 978,
"Irrelevant or unnecessary facts do not preclude
summary judgment even when they are in dispute.”
Id. (citation omitted). In determining whether
the nonmovant has identified a "material" issue
of fact for trial, we are guided by the
applicable substantive law; "{o]nly disputes that
could affect the outcome of the suit under
governing law will properly preclude the entry of
summary judgment." McGinn v. Burlington Northern
RR. Co., 102 F.3d 295, 298 (7th Cir. 1996)
{citation omitted). Furthermore, a factual
dispute is "genuine" for summary judgment
purposes only when there is "sufficient evidence
favoring the nonmoving party for a jury to return
a verdict for that party." Anderson vy. Liberty
Lobby, Inc., 477 U.S. 242, 249, 106 8. Ct. 2505,
91 L. Ed. 2d 202 (1986). Hence, a “metaphysical
doubt" regarding the existence of a genuine fact
issue is not enough to stave off summary
judgment, and "the nonmovant fails to demonstrate
a genuine issue for trial 'where the record taken
as a whole could not lead a rational trier of
fact to find for the non-moving party... .'"
Logan, 96 F.3d at 978 (quoting Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538
(1986)).

259 F.3d at 837,


(dictum).‘ See also Berutti, 496 N.E.2d at 354, However, the
Illinois courts have also held that the grounds for discharge
that will be read into a contract are limited. In Allen, 379
N.E,2d at 772, the court indicated the employee's conduct would
qualify as good cause if the conduct had a natural tendency to

injure the employer's business. Berutti distinguished Allen as

being limited to its specific facts, that is, a corporate officer
breaching his fiduciary duty by attempting to solicit away the
corporation's business will constitute good cause for discharge
even if not specifically set forth in the contract. See Berutti,
496 N.E.2d at 354. In Berutti, the court would not, as a matter
of law, read into a contract that an employee had to perform at a
specific level to avoid being discharged. Id. The court noted
that defendant could have included a specific performance level

in the contract had it desired to impose one as a condition of

employment. Similarly, in Pokora v. Warehouse Direct, Inc., 322
Ill. App. 3d 870, 751 N,E.2d 1204, 1209-10 (2d Dist. 2001), the
Illinois Appellate Court also declined to read into a contract
for a specific term that, in order to remain employed, the
employee had to satisfy performance requirements that were not
written into the employment contract. Consistent with Berutti
and Pokora, it will not be read into the contract~-which was

drafted by defendant--that, in order to avoid discharge for

‘Although Allen states that this rule applies even if
grounds for discharge are specifically delineated in the
contract, the contract at issue in Allen did not contain such a
delineation. Allen involves reading good cause into a contract
that did not otherwise define grounds for discharge.

- 14 -


Plaintiff's motion for summary judgment [14] is granted in part
and denied in part. Defendant will not be able to proceed on any
defense based on plaintiff being discharged for any reason other
than failing to perform his job in a manner acceptable to
defendant's President. Count II is dismissed. This case will be
referred to the assigned magistrate judge for the purpose of
conducting a settlement conference within 45 days. A status
hearing before Judge Hart will be held on September 8, 2004 at

11:00 a.m.

ENTER:

ZT

UNITED STATES DISTRICT JUDG

DATED: JUNE [5 . 2004


On a motion for summary judgment, the entire record is
considered with all reasonable inferences drawn in favor of the
nonmovant and all factual disputes resolved in favor of the

nonmovant. Turner v. J.V.0.B. & Associates, Inc., 330 F.3d 991,

994-95 (7th Cir. 2003); Palmer v. Marion County, 327 F.3d 588,

592 (7th Cir. 2003); Abrams v. Walker, 307 F.3d 650, 653-54 (7th
Cir. 2002). The burden of establishing a lack of any genuine
issue of material fact rests on the movant. OQutlaw v. Newkirk,
259 F.3d 833, 837 (7th Cir. 2001); Wollin v. Gondert, 192 F.3d
616, 621-22 (7th Cir. 1999). The nonmovant, however, must make a
showing sufficient to establish any essential element for which
he or it will bear the burden of proof at trial. Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986); Binz v. Brandt
Construction Co., 301 F.3d 529, 532 (7th Cir. 2002); Traylor v.
Brown, 295 F.3d 783, 790 (7th Cir. 2002). The movant need not
provide affidavits or deposition testimony showing the
nonexistence of such essential elements. Celotex, 477 U.S.

at 324, Also, it is not sufficient to show evidence of
purportedly disputed facts if those facts are not plausible in

light of the entire record. See NLFC, Inc. v. Devcom

Mid-America, Inc., 45 F.3d 231, 236 (7th Cir.), cert. denied, 515

U.S. 1104 (1995); Covalt v. Carey Canada, Inc., 950 F.2d 481, 485

(7th Cir. 1991); Collins v. Associated Pathologists, Ltd., 844

F.2d 473, 476-77 (7th Cir.), cert, denied, 488 U.S. 852 (1988).
As the Seventh Circuit has summarized:

The party moving for summary judgment
carries the initial burden of production to


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

WILLIAM CHEN,

Plaintiff,

No. 03 C 5729
eyered
a 7 1004

QUARK BIOTECH, INC., a
California corporation,

4

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff William Chen is a former employee of defendant
Quark Biotech, Inc. Plaintiff claims that his written employment
contract, which contained a three-year term, was breached when he
was discharged approximately eight months after the commencement
date of the contract. Defendant contends that, consistent with
provisions of the contract, plaintiff was properly discharged for
cause or other adequate reason. Since the parties present no
choice of law arguments and rely on Illinois law, it is assumed
that Illinois contract law applies to plaintiff's contract claim.

See Wood v. Mid-Valley, Inc., 942 F.2d 425, 426-27 (7th Cir.

1991); Guaranty Residential Lending, Inc, v. International
Mortgage Center, Inc., 305 F, Supp. 2d 846, 851 n.4 (N.D. Til.

2004). Plaintiff also brings a claim under the Illinois Wage
Payment and Collection Act ("IWPCA"), 820 ILCS 115. Presently

pending are cross motions for summary judgment.

Au


President. Therefore, plaintiff cannot be entitled to summary
judgment. Defendant also cannot be entitled to summary judgment
on this ground. However, it still must be considered whether
defendant could be entitled to summary judgment based on the
termination for cause provision or, alternatively, whether
plaintiff would be entitled to partial summary judgment removing
the termination for cause issue from the case.

Plaintiff contends the termination for cause clause
should be construed as being limited to the specific grounds set
forth in § 6 of the parties' contract. The contract, however,
specifically states that cause “includes but is not limited to”
the listed grounds. This is a clear statement that other
possible grounds for cause may exist, However, absent some
indication to the contrary, the ejusdem generis rule of contract
construction should be applied, which calls for limiting other
grounds included in this clause to ones that are similar to
those that are expressly included in the list, that is, they
must fall within the same general class of conduct. See Save

Our Little Vermillion Environment, Ing. v. Illinois Cement Co.,

311 Ill. App. 3d 747, 725 N.E.2d 386, 390 (3d Dist.), appeal
denied, 189 Ill. 2d 681, 731 N.E.2d 771 (2000). The enumerated
grounds are “theft, gross misconduct, conviction of.a felony,
insubordination or neglect of my job responsibilities." The
first four items all involve malfeasance and conduct that is of
amore extreme nature than plaintiff's alleged inability to

competently perform complex scientific research, The last item,

-12-


cause, plaintiff had to satisfy performance standards that were
not otherwise included in the parties’ contract.§

Plaintiff is entitled to partial summary judgment
precluding any defense based on plaintiff being discharged for
cause. The issue remaining for trial on plaintiff's contract
claim is whether plaintiff was properly discharged for failing to
perform his job in a manner acceptable to defendant's President,

Defendant also moves for summary judgment dismissing
plaintiff's IWPCA claim. Defendant contends the IWPCA is
inapplicable because plaintiff's work was performed outside
Illinois. Plaintiff points to evidence that he was in Chicago
for a few weeks and performed work for defendant while in
Chicago. However, plaintiff was paid for that work. The unpaid
wages that plaintiff seeks as damages are for work that would
have been performed in Ohio in 2002 and thereafter. The IWPCA

does not apply to such a claim, See Khan v. Van Remmen, Inc.,

325 Ill. App. 3d 49, 756 N.B.2d 902, 912 (2d Dist. 2001). The
Count II IWPCA claim against defendant will be dismissed.

This appears to be a case that is amenable to settlement.
The case will be referred to the assigned magistrate judge to
conduct a settlement conference.

IT IS THEREFORE ORDERED that defendant's motion for

summary judgment [17] is granted in part and denied in part.

5Even if failure to perform adequately had been held to
be a ground for discharge under the parties’ contract, defendant
would not be entitled to summary judgment. As previously
discussed, a genuine factual dispute exists as to whether
plaintiff's job performance was deficient.

- 15 -