SECOND DIVISION

									March 9, 2004

No. 1-02-3372

THE PEOPLE OF THE STATE OF ILLINOIS ex rel. ILLINOIS DEPARTMENT OF LABOR, 

		Plaintiff-Appellant, 

				v.

GENERAL ELECTRIC COMPANY, a New York

corporation, 

		Defendant-Appellee. 	

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Appeal from the 

Circuit Court of

Cook County.

Honorable

Richard William Austin, 

Judge Presiding.

	JUSTICE BURKE delivered the opinion of the court:

	Plaintiff, the People of the State of Illinois ex rel. the Illinois Department of Labor (Department) appeals from an order of the circuit court

entering summary judgment in favor of defendant General Electric Company,

concluding that two former General Electric employees were not entitled to

additional pay for vacation time.  On appeal, the Department contends that

General Electric was not entitled to summary judgment because it failed to

demonstrate that its practice of precluding employees from taking vacation days

during the first year of employment was not a subterfuge to avoid making payment

to its employees for vacation days earned.  For the reasons set forth below, we

reverse and remand.

	STATEMENT OF FACTS

	Ronald Hogue worked for General Electric from August 12, 1961, until August

1, 1998, when he retired.  At this time, Hogue was entitled to 30 days' vacation,

he had taken 12 days, and General Electric paid him for 18 days, the unused

portion of his allotted vacation time.  Hogue believed, however, that he was

entitled to 7/12ths additional time for the period he worked in 1998.  Priscilla Scott worked for General Electric from March 1, 1973, until November 30, 1999,

when she retired.  At this time, Scott was entitled to 25 days' vacation, but she

had taken all 25 days prior to her retirement.  Scott believed, however, that she

was entitled to 11/12ths additional time for the period she worked in 1999.  Both

Hogue and Scott worked at General Electric's Morrison, Illinois plant.  

	On July 30, 1999, the Department issued a wage payment demand to General

Electric, with respect to Hogue, seeking payment for vacation time during the

seven months he worked in 1998, in the amount of $2,187.50.  Because General

Electric did not pay this amount, on July 13, 2000, the Department filed a

complaint against General Electric, alleging that General Electric violated

section 5 of the Wage Payment and Collection Act (820 ILCS 115/5 (West 2002)) by

refusing to pay Hogue for the additional vacation time. On December 29, the

Department issued a wage payment demand to General Electric on behalf of Scott

in the amount of $3,244 for vacation time for the period she worked in 1999. 

Because General Electric refused to pay Scott the additional amount, the

Department amended its complaint on July 6, 2001, to add a claim on her behalf. 

In both complaints, the Department sought the amount due and owing Hogue and

Scott, as well as penalties as provided for by statute.

	On February 14, 2002, General Electric filed a motion for summary judgment. 

Attached to the motion was the "Declaration of James Shires," in which Shires

stated that he was the human resource manager for General Electric at the

Morrison plant from June 1998 to April 2000.  According to him, a vacation policy

was in effect from January 1, 1995, to January 1, 1998, and another in effect

from January 1, 1998, until January 1, 2001.  Both of these policies, contained

in General Electric's employee handbooks, were attached to General Electric's

motion for summary judgment.  Shires declared that, although the language of the

two policies were different, they meant the same thing and were administered in

the same way.  Shires further declared that employees were not entitled to and did not earn vacation benefits until after one year of service.  Once an employee

completed the one year of service, he or she was awarded all of that year's

vacation time in advance on January 1.  Shires also declared that if there was

a gap between an employee's first anniversary and January 1, the employee was

awarded one week vacation during that gap period.  Shires further acknowledged

that employees received additional vacation time based on their length of

service.1  

	Also attached to General Electric's motion were the deposition transcripts

of Shires and Harold Wickler, General Electric's human resource specialist, as

well as excerpts from Hogue and Scott's depositions.  Hogue testified that it was

his understanding, from reading the employee handbooks, that employees worked one

year to earn vacation for the next year.  Hogue admitted that, over the years,

a lot of his friends retired and did not get paid for the next year's vacation

time.  However, Hogue stated that he did not think about this until he retired

and, after he learned the law in Illinois, he came to believe this policy was

wrong.

	Priscilla Scott testified that when she was hired in 1973, Bud Claven of General Electric's human resource department told her that employees worked one

year for the next year's vacation.  Scott further stated that, over the years,

she had general conversations with over 100 people who had talked about how

employees worked that year to get vacation time next year.  Scott admitted that

she never read the vacation policy in General Electric's employee handbooks until

she retired.

	James Shires testified that he was the human resource manager for General

Electric's Morrison plant from June 1998 to May 2000.  At the time of his

deposition, he was a vice president of human resources.  According to Shires, in

both positions he did the same work: administered personnel policies, including

vacation policies.  When asked how the terms "earned" and "eligible" differed,

Shires stated that he could not say and that he did not use the term "earn."2  With respect to General Electric's vacation policy, Shires stated that as of

January 1 each year, any employee who received income in the last week of the

previous year was eligible to take all of his or her vacation days immediately. 

However, an employee who was going to pass an anniversary date that year would

have to await that date to take the additional time.  The following colloquy then

occurred between the Department's attorney and Shires:

			"Q: [Ms. Nguyen:]  Is it your understanding for

the first six months that you worked there at General

Electric, were you earning vacation?

			A:  No.

			Q:  You simply became eligible after six months to

take vacation?

			A:  Yes.

			Q:  When would you start earning that one-week vacation that you say that you're eligible for after six

months?

	***

			A:  I don't know that I'd ever say--I would never

say that I was earning some vacation.  I would say when

I would be able to take vacation."3

	Harold Wickler testified that "eligible" meant that an employee was

actively on the payroll in January of each year.  According to Wickler, an

employee needed one year of continuous service to become eligible for vacation

time.  Wickler stated that if someone worked continuously through December 31,

and retired that day, he or she would be eligible for the next year's vacation

allotment.  Wickler then testified as follows as to the meaning of earn and

eligibility:

			"When you earn something, you have done something,

and after you have done that, you get a reward.  At the

end of a week, you get paid.  You've earned it,

therefore you get paid.

	***

			And eligible, you have met certain requirements

but you have to be within certain parameters to be

eligible."

Wickler further testified, in response to the Department's attorney's questions,

as follows:

			"Q:  [Ms. Nguyen:]  In the years with General

Electric and in your position as a human resource specialist, were you ever told that your vacation that

you're allotted at the beginning of the year is an

inducement for future services?

			A.  No.

			Q:  That term was never used?

			A:  Never used.

			Q:  Were you ever told that on January 1st all the

vacation that you were allotted was vacation that was

advanced to you?

			A:  No."

Wickler, when later questioned, responded that after one year a person starts

earning vacation time.

	The two General Electric vacation policies offered (1995 to 1998 and 1998

to 2001) were the same or similar in certain respects and, thus, only the

differences are detailed below.  The second vacation policy, contained in the

employee handbook effective January 1, 1998, to January 1, 2001, provided:

			"You are eligible for paid vacation if you are a

full-time Company employee and have at least one year of

continuous service.

	***

			To remain eligible for vacation each year:

			You must work at least part of the last full

calendar week of the prior year or have earnings

attributable to that week, and

			Your continuous services or service credits must

be maintained through December 31 of the prior year.

	***

			In general, vacation pay is based on your normal straight-time earnings for a regular work week.  ***

	***

			If you are an eligible full-time Company employee,

the amount of vacation you may take depends on the

length of your continuous service.  You become eligible

for additional vacation weeks on your anniversary date,

no matter when it falls during the year."

In a latter paragraph, the policy stated that employees were "expected to

schedule and take [their] full vacation each year," and that if an employee

leaves the company, he or she (or his or her estate) "will be paid for any unused

vacation days."  

	Conversely, the first policy, effective January 1, 1995, to January 1,

1998, stated, with respect to eligibility:

			"If you are a new employee, you are eligible to

earn vacation benefits once you have completed at least one year of continuous service with the Company.  You

receive additional weeks of vacation as the length of

your continuous service increases."  (Emphasis added.)

With respect to the length of vacation, the first policy provided:

		"After you have completed one year of continuous service, you are entitled to one week of vacation.  You

are entitled to additional weeks of vacation when you

pass certain service anniversaries, as shown below.  You

do not begin earning vacation benefits until you have completed one year of continuous service."  (Emphasis

added.)

Lastly, with respect to remaining eligible for vacation benefits, the first

policy stated, "To remain eligible to earn vacation benefits each year," and thereafter continued the same as the second policy.  (Emphasis added.)  The

service anniversaries under both policies were 1, 2, 5, 7, 15, 20, and 30 years.

	On April 25, 2002, the Department filed its response to General Electric's

motion for summary judgment, as well as a cross-motion for summary judgment,

arguing that General Electric's vacation policy was an "earn-in-arrears" policy, i.e., an employee works one year to earn vacation for the next year.  The Department further argued that General Electric had failed to demonstrate that

its policy was not a subterfuge to avoid paying vacation time, stating that

numerous factors supported a conclusion that General Electric's employees earned

vacation one year for the next year.

	In addition to the above-referenced depositions and handbooks submitted by

General Electric, the Department attached a December 14, 1993, memorandum from

General Electric's corporate headquarters to its response.  This memorandum was

entitled "Prorated Vacation Pay for Illinois Employees," and provided that those

employees who terminated their service during the year must be paid unused

vacation.  The memorandum further provided that in addition to those days, an

employee who terminated his or her employment and would be entitled to additional

vacation on their next anniversary date, would be entitled to a portion of that

additional time.  The memorandum set forth several examples.  First, if an

employee was to reach his 15th anniversary on September 16, 1994, and was

terminated on June 18, 1994, the employee would be entitled to 9/12ths of the

additional five days he or she would have earned September 16, and any remaining

vacation days from 1994.  Second, if the same employee terminated service with

General Electric on December 17, 1993, he or she would be entitled to 3/12ths of

the additional five days and any remaining days from 1993.  With respect to

employees who had worked for General Electric for less than one year, the

memorandum provided that these employees must now be paid for the earned portion

of their vacation.  For example, if an employee was terminated after eight months, he or she would be entitled to 8/12ths of the 5 days he or she would have

been eligible to take upon his or her one-year anniversary date.

	On June 20, General Electric filed its reply and on September 19 the

parties entered a joint stipulation that summary judgment was the most

appropriate procedure to dispose of this case.  On October 3, the trial court

entered summary judgment in favor of General Electric.  This appeal followed.

	ANALYSIS

	Summary judgment is proper when "the pleadings, depositions, and admissions

on file, together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law."  735 ILCS 5/2-1005(c) (West 2000); Robidoux, 201 Ill. 2d at 335.  The right to relief must so clearly favor the movant that no fair-minded

person could dispute the movant's right to judgment in its favor.  The Southern Illinoisan, a Division of Lee Enterprises, Inc. v. Department of Public Health, 319 Ill. App. 3d 979, 986, 747 N.E.2d 401 (2001).  In other words, the movant's

entitlement to judgment must be clear and free from doubt.  Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867 (1986); Turner Investors v. Pirkl, 338 Ill. App. 3d 676, 680, 789 N.E.2d 323 (2003).  The evidence must be strictly construed against the movant and liberally, or in the light most favorable, to the

nonmoving party.  Turner Investors, 338 Ill. App. 3d at 680.  Where parties have filed cross-motions for summary judgment and have agreed that no genuine issue

of material fact exists, a reviewing court decides the issues presented as

questions of law.  Harwood v. McDonough, 344 Ill. App. 3d 242, 245, 799 N.E.2d 859 (2003).  With respect to a trial court's entry of summary judgment, our

review is de novo.  General Casualty Co. of Illinois v. Carroll Tiling Service, Inc., 342 Ill. App. 3d 883, 889, 796 N.E.2d 702 (2003).  "Our function on an appeal from the grant of summary judgment is limited to determining whether the trial court correctly found that no genuine issue of material fact existed and,

if that was the case, whether the trial court correctly entered judgment as a

matter of law."  General Casualty Co. of Illinois, 342 Ill. App. 3d at 889.  

	Section 5 of the Wage Payment and Collection Act (Act) provides:

			"Every employer shall pay the final compensation

of separated employees in full, at the time of

separation ***.

			Unless otherwise provided in a collective

bargaining agreement, whenever a contract of employment

or employment policy provides for paid vacations, and an

employee resigns or is terminated without having taken

all vacation time earned in accordance with such

contract of employment or employment policy, the

monetary equivalent of all earned vacation shall be paid

to him or her as part of his or her final compensation

at his or her final rate of pay and no employment

contract or employment policy shall provide for

forfeiture of earned vacation time upon separation." 

820 ILCS 115/5 (West 2002).

Also relevant in the instant case is the Department's regulation, entitled

"Earned Vacations," which states as follows:

			"a) Whenever an employment contract or an

employment policy provides for paid vacation earned by

length of service, vacation time is earned pro rata as

the employee renders service to the employer.

			b) Oral promises, handbooks, memoranda, and

uniform patterns of practice may create a duty to pay

the monetary equivalent of earned vacation.

	***

			f) The Department recognizes provisions whereby:

				1) no vacation is earned during a

limited period at the commencement of

employment. The employer must demonstrate

that the provision is not a subterfuge to

avoid payment of vacation actually earned

by length of service and, in fact, no

vacation is implicitly earned or accrued

during that period."  56 Ill. Admin. Code

§300.520.

	The core of the dispute here is whether General Electric employees earn

vacation days for prior work, i.e., vacation time was compensation for the prior year's work, the Department's position, or, whether vacation days were given as

an incentive for future work and were not compensation for past services, General

Electric's position.  In other words, the question is whether General Electric's

policy provides for forfeiture of earned vacation time.  The answer to this

question, according to General Electric, is controlled by Prettyman v. Commonwealth Edison Co., 273 Ill. App. 3d 1090, 653 N.E.2d 65 (1995).  The Department, on the other hand, maintains that the facts of the instant case are

more akin to those in Golden Bear Family Restaurants, Inc. v. Murray, 144 Ill. App. 3d 616, 494 N.E.2d 581 (1986), and Mueller Co. v. Department of Labor, 187 Ill. App. 3d 519, 543 N.E.2d 518 (1989).

	Initially, we note that Golden Bear Family Restaurants, Inc. is not applicable, nor instructive, regarding the issues in the instant case and both

counsel so agreed at a hearing on the summary judgment motions.  The Golden Bear Family Restaurants, Inc. court concluded that the language of the vacation policies at issue clearly resulted in a forfeiture of earned vacation time and,

because the policies resulted in forfeiture, they violated section 5 of the Act. 

Golden Bear Restaurants, Inc., 144 Ill. App. 3d at 627.  In the instant case, the language of the vacation policies are different than those in Golden Bear Restaurants, Inc. and do not clearly result in forfeiture.

	In Mueller, an employee left his employer after working there for one and one-half years.  Mueller, 187 Ill. App. 3d at 520.  Upon leaving, the employee sought to be reimbursed for vacation time that he had earned, but not taken,

during the beginning of his second year of work.  Mueller, 187 Ill. App. 3d at 520.  The employer refused, stating that because the employee had not completed

the fiscal year, he was not entitled to compensation for vacation time.  Mueller, 187 Ill. App. 3d at 521.  In Mueller, the vacation policy provided:

		"INITIAL VACATION

			After six months of service, new employees may

take one-half of the vacation that they will have earned upon completion of their one-year anniversary.  Then

upon completion of one years [sic] service, the employee may take the other one-half of vacation due.  ***

		SUBSEQUENT VACATION

			After the initial vacation, an employee becomes

eligible for subsequent vacations at the beginning of

each fiscal year.  An exception to this is those years

when vacation allotments advance.  During these years,

the employee will be allotted his regular vacation at the start of the fiscal year and the additional vacation

on his anniversary date.

		TERMINATION

			Upon termination, the employee will be paid for

any unused vacation for the current fiscal year." 

(Emphasis added.)  Mueller, 187 Ill. App. 3d at 521-22.

The employer argued that its employment contract controlled over the Act and that

its policy provided "that an employee became 'eligible' for vacation only with

the beginning of each fiscal year," and because the employee in Mueller was not employed at the beginning of the fiscal year, since he had left the company

before that time, he was not eligible for vacation benefits.  Mueller, 187 Ill. App. 3d at 523.  The Mueller court disagreed, finding that the "word 'eligible' as used in [the employer's] employment contract [did not] mean[] the same as

'earned' in the Act."  Mueller, 187 Ill. App. 3d at 523.  In this regard, the Mueller court stated:

		"First, plaintiff's own vacation policy makes a

distinction between when vacation time is earned and

when an employee becomes eligible to take that time. 

The policy states an employee is entitled to two weeks

of vacation during each of his first two years of

employment.  With additional years of service, the

employee becomes eligible for additional vacation time. 

This additional vacation time becomes earned not at the

beginning of the fiscal year but on the anniversary of

the employee's hiring.  This clearly indicates an

employee does not become 'eligible' to take additional

vacation time until he has 'earned' it by completing the

necessary years of service.  Under the reading of the

employment contract urged by the plaintiff, an employee

could 'earn' his vacation time only by being presently employed by the plaintiff on the first day of each

fiscal year.  Such a reading would require us to find an

employee 'earns' his vacation benefits for a whole year

on the basis of his employment status on a single day,

not by his labors on the other 364.  This result would

defy the common understanding of the word 'earn' and we

decline to adopt it."  Mueller, 187 Ill. App. 3d at 523- 24.

The Mueller court reversed the trial court's finding for the employer, concluding that the employee was entitled to pro rata vacation benefits.  Mueller, 187 Ill. App. 3d at 524.

	In Prettyman, the trial court granted summary judgment in favor of the defendant employer.  Prettyman, 273 Ill. App. 3d at 1091.  The employees appealed, contending that the defendant's vacation policy violated section 5 of

the Act and that they were entitled to additional vacation pay.  The policy at

issue provided:

			"1. In each calendar year, all regular employees

who were on the payroll and under age 70 at the close of

the last day of the preceding calendar year shall be

entitled to vacation with pay in accordance with the

provisions of this Order.

			2. A regular employee will be granted a regular

vacation of two calendar weeks after completing the

first year of service.  However, a management employee

will be eligible for a vacation of one calendar week

after completing six months of continuous service, this

vacation to be taken prior to the first year service

anniversary date.  Thereafter, a regular vacation of two calendar weeks in each calendar year will be allowed.

	***

			11. A regular employee, eligible for a vacation

with pay, whose employment by the Company is terminated

before taking the entire vacation to which he or she is

eligible during the current calendar year, shall receive

a vacation allowance equal to his or her basic hourly

rate for the number of eligible days in excess of the

number of days of vacation already taken during the

current calendar year ***."  Prettyman, 273 Ill. App. 3d at 1091.

Under the policy, employees also received extra vacation days as the number of

years of their service increased.  Prettyman, 273 Ill. App. 3d at 1092.  The trial court, in granting summary judgment in favor of the defendant, concluded

that the policy did not "operate on an earn-in-arrears basis but [was] forward-

looking in that defendant grant[ed] its employees their respective vacation

allowances for a particular year on January 1 of that year."  Prettyman, 273 Ill. App. 3d at 1092.  The trial court further concluded that the defendant's vacation

policy "did not require plaintiffs to forfeit any of their earned vacation

benefits, but, in fact, allowed them to keep all of the allotted vacation time

for 1992 [the year of their termination] which they received on January 1 of that

year *** despite the fact that they only worked for three-quarters of the year." 

Prettyman, 273 Ill. App. 3d at 1092.

	On appeal, the plaintiffs contended that the trial court misconstrued the

defendant's vacation policy.  Prettyman, 273 Ill. App. 3d at 1092.  The Prettyman court first set forth section 5 of the Act and noted that "an employer violates

this provision only when it either fails to pay its former employees for their

earned but unused vacation time or adopts a policy which provides that an employee loses earned but unused vacation time upon separation."  Prettyman, 273 Ill. App. 3d at 1093.  According to the plaintiffs in Prettyman, there was a material question of fact as to how and when the employees earned their vacation

time.  The Prettyman court disagreed, stating: 

		"Plaintiffs *** have failed to produce any exhibits,

depositions, affidavits or other evidence which

establishes that vacation time is earned in arrears,

while defendant has presented evidence showing that

employees are granted their vacation benefits in a given

year before their services are rendered in that year. 

In addition to the vacation policy, defendant has

offered the affidavit and deposition testimony of George

Mitchell, its director of compensation and benefit

planning, which indicates that annual vacation benefits

are, in fact, paid to employees before the company

receives the benefit of their labor for a given year." 

Prettyman, 273 Ill. App. 3d at 1093.

The Prettyman court then found that Golden Bear Family Restaurants, Inc.'s vacation policy was "wholly distinguishable."  Prettyman, 273 Ill. App. 3d at 1093.  Specifically, the Prettyman court stated: 

		"[T]he undisputed facts here show that [the plaintiffs]

were not deprived of any earned vacation benefits but

were, in fact, allowed to keep all of the 1992 vacation

benefits given them on January 1 of that year despite

having only worked for nine months of that year.  As the

foregoing discussion makes clear, the situation here

differs from that in Golden Bear in that here, no labor was yet rendered by plaintiffs at the time they were

allotted their 1992 vacation benefits.  Unlike in Golden Bear, where the vacation pay was considered compensation for past services, in this case, the vacation pay is

conferred to the employees up front.  Thus, it cannot be

said that defendant's employees earn their vacation

benefits on a pro rata basis."  Prettyman, 273 Ill. App. 3d at 1096.

According to the court, what the plaintiffs were really seeking was three-

quarters of the vacation time they would receive the next year, which the

defendant was not required to pay.  Prettyman, 273 Ill. App. 3d at 1096.  The court concluded:

		"As defendant's vacation policy is not set up to confer

vacation benefits as payment for past services but,

rather, is essentially set up to confer such benefits as

an inducement for future services, plaintiffs could

never prevail on their claim that the policy violates

section 5 of the Act by depriving them of their pro rata

share of earned vacation time.   Accordingly, we hold

that summary judgment in favor of defendant was proper." 

Prettyman, 273 Ill. App. 3d at 1096.

	The holdings of Prettyman and Mueller clearly conflict despite the similarities of the policies, i.e., the employees at each respective company received all of their vacation days at the beginning of the year, additional time

was allotted only upon reaching the particular anniversary date, and eligibility

was based upon working one specific day.  We note that Prettyman did not even mention Mueller, yet reached a diametrically opposite conclusion, i.e., because an employee was given all of his or her vacation days for the year on the first

of the year, the policy was forward-looking, not an "earn in arrears" policy. 

Certain factors in both cases are present in the instant case that would allow

General Electric's policy to fall into either.  The case sub judice is further complicated by the fact that there are two policies in the record that contain

different language.4  In addition, in the instant case, we have the December 14, 1993, memorandum from General Electric's corporate headquarters.5

	The vacation policy set forth in General Electric's second handbook is

analogous to the policy in Prettyman as demonstrated by the chart below.  The Prettyman court set forth the following example:6

	Hire Date

(no vacation)

	12/1/93

Six Months

(1 week)

6/1/94

1-Year

Anniversary

(2 weeks)

12/1/94

1st day of New

Calendar Year

(2 weeks)

1/1/95

In the instant case, in the example we provide, which encompasses a longer period of time than the Prettyman example, the following situation would occur:

	Hire Date

	(no vacation)

	12/1/93

	1-Year

Anniversary

	(1 week)

	12/1/94

1st day of New

Calendar Year

	(1 week)

	1/1/95

2-Year

Anniversary

(1 week)

12/1/95

1st day of New

Calendar Year

(2 weeks)

1/1/96

1st day of New

Calendar Year

(2 weeks)

1/1/97

1st day of New

Calendar Year

(2 weeks)

1/1/98

5-Year

Anniversary

(1⁄2 week)

12/1/98

1st day of New

Calendar Year

(21⁄2 weeks)

1/1/99

	In both the above situations, if the employee left the employer's company within six months (Prettyman) or one year in the instant case, they would not be entitled to any vacation.  On the one year anniversary, both employees would be

allotted vacation time, immediately, which they would be required to use within

that very month.  If the employee left the company during December 1994, he or

she would be entitled to compensation for any of those days that remained unused. 

On January 1, 1995, both employees would be allotted vacation time to use

throughout the balance of that year.  Again, if the employee left the company at

any time during the year, he or she would be entitled to compensation for any

unused days.  In our example, the employee would receive an additional week of

vacation on December 1 because he or she would have reached the two-year

anniversary.  Again, the employee must use the vacation time within the next

month, but if he or she left the company, he or she would be entitled to

compensation for any unused time.  The scenario would continue on in both

instances.  Clearly, under the vacation policy set forth in General Electric's

employee handbook effective January 1, 1998, to January 1, 2001, the same

situation exists here as in Prettyman.  Moreover, the eligibility paragraph in General Electric's handbook, set forth above, is similar to the eligibility

paragraph (paragraph 2) in Prettyman, i.e., in Prettyman, working the last day of the year and, here, working at least some of the last week of the year.  The policies are also the same in that additional vacation is awarded based on length

of service and allotted upon reaching an anniversary date, vacations are expected

to be taken in full each year, and, if an employee left the company, he or she

would be paid for any unused vacation days from that year.

	Accordingly, if the only relevant evidence in the instant case was the

vacation policy set forth in the 1998 to 2001 handbook, Prettyman would be controlling.  However, that is not the only relevant evidence in the instant

case.  We also have the policy set forth in the first employee handbook

(effective 1995 to 1998).  The language of the policy set forth in this handbook

is more akin to Mueller.  Specifically, this policy provided that an employee was "eligible to earn" vacation benefits once he or she had completed one year of service and that an employee "d[id] not begin earning vacation benefits" until he or she completed that one year.  (Emphasis added.)  The policy in Mueller similarly provided that employees earned vacation upon completion of one year of

service.  Also, in both cases, employees received all of their vacation time at

the beginning of the year (this was also the case in Prettyman) and employees could take additional vacation time, based on an anniversary, only upon reaching

that anniversary.  As in Mueller, General Electric's 1995 to 1998 policy used both the terms "eligible" and "earn" and, in fact, did so in the same sentence. 

As in Mueller, General Electric clearly could not have meant the terms to mean the same thing.  Thus, if we looked only to the first vacation policy, we would

have to say that Mueller controlled the outcome of the instant case.

	The evidence presented here does not end there, however.  We also must

consider Wickler's testimony that he was never told that General Electric's

vacation policy was forward-oriented and he stated that, after one year, a person

begins earning vacation time.  Most important, however, is the corporate

memorandum, dated December 14, 1993, offered by the Department.  Clearly, this memorandum demonstrates that employees earned vacation time.  For example, an

employee who left prior to reaching an anniversary date would be entitled to

payment for the additional vacation time to be allotted upon reaching an

anniversary date based on the number of months he or she worked that year before

the anniversary date.  Similarly, an employee who left before his or her first

anniversary date would be entitled to the pro rata amount of vacation time for the number of months he or she worked.  This plainly shows that employees earned

vacation time based on their past service to General Electric.

	We do not believe that Prettyman controls the outcome here.  First, there was only one policy at issue in Prettyman, whereas here, we have two different policies as well as a corporate memorandum.  In addition, Prettyman failed to address Mueller.  Lastly, and most importantly, the court in Prettyman specifically stated that the plaintiffs had failed to adduce any evidence to show

that the policy at issue was an "earn in arrears" policy.  Conversely, in the

instant case, we do have such evidence.

	Thus, we must determine whether the trial court properly concluded that

General Electric was entitled to judgment as a matter of law based on the

evidence present in the record before this court.  The Department maintains that

General Electric failed to demonstrate that its policy was not a subterfuge.  In

this regard, General Electric maintains that Prettyman called into question the Department's regulation that requires the employer to prove its policy was not

a subterfuge because Prettyman did not place the burden of proof on the employer to prove "the negative proposition that conferring vacation benefits up front is not a subterfuge for avoiding the payment of vacation actually earned by length of service."  (Emphasis in original.)  Alternatively, General Electric maintains

that even if the regulation is valid, it has proven that no vacation time was

earned (General Electric's own word) during the first year of work, which was not a subterfuge to avoid paying for vacation time.

	With respect to General Electric's argument, we find it unpersuasive. 

First, General Electric improperly raises this substantive argument in a

footnote.  Substantive arguments may not be made in footnotes and responses made

thereto are likewise improper.  Lundy v. Farmers Group, Inc., 322 Ill. App. 3d 214, 218, 750 N.E.2d 314 (2001).  In any event, we do not agree that Prettyman called this regulation into question.  Prettyman did not even mention the regulation.  Moreover, the Prettyman court did require the defendant employer to present evidence.  This is particularly clear in light of its comment that the

plaintiffs failed to produce any evidence and the court then recited the evidence

presented by the defendant.  In addition, the issue was before the court in

Prettyman on the defendant's motion for summary judgment.  No reported case has addressed the propriety of the Department's regulation and we do not believe the

issue is ripe before this court.  In any event, General Electric moved for

summary judgment and was therefore required to demonstrate that it was entitled

to judgment as a matter of law.  The question is, then, whether General Electric

demonstrated, as a matter of law, that its policy complied with section 5 of the

Act.  We find that it did not.

	Unlike the plaintiff in Prettyman, the Department here presented ample evidence to establish that General Electric's vacation policy was an earn-in-

arrears policy.  The following evidence was adduced: the vacation policy

effective 1995 to 1998; Shire's statement in his "Declaration" that employees did

not "earn" vacation until after one year service; Wickler's testimony that he,

as General Electric's human resource specialist, was never told that the vacation

policy was future-oriented and his testimony that after one year an employee

began "earning" vacation time; and Hogue and Scott's testimony that they were

under the impression that employees work one year for vacation time for the next year.  The only evidence General Electric presented to demonstrate that its

policy was forward looking was the second vacation policy, effective 1998 to

2001, which it interpreted pursuant to Prettyman.  Because not only the weight of the evidence, but also viewing it in the light most favorable to the

Department, demonstrates that General Electric's vacation policy did, in fact,

confer vacation benefits as payment for past services, rather than as an

inducement for future services, the policy, as in Mueller, violates section 5 of the Act.  The evidence here, unlike that in Prettyman, does not so clearly and freely from doubt demonstrate that General Electric was entitled to relief and

fair-minded persons could dispute its right to judgment as a matter of law. 

Accordingly, we find that the trial court erred in entering summary judgment in

General Electric's favor and against the Department.  Based on the evidence

presented, the trial court should have entered summary judgment on the

Department's cross-motion in its favor.  We therefore remand this cause to the

circuit court for entry of summary judgment in the Department's favor in the

amount of the wage payment demands made upon General Electric on behalf of Hogue

and Scott and for a determination of the amount of penalty owed by General

Electric to Hogue and Scott pursuant to section 14(b) of the Wage Payment and

Collection Act (820 ILCS 115/14(b) (West 2002)).

	CONCLUSION

	For the reasons stated, we reverse the judgment of the circuit court of

Cook County and remand this cause for further proceedings  consistent with this

order.

	Reversed and remanded.

	CAHILL and GARCIA, JJ., concur../	20