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REILLY v. POLYCHROME CORP.

January 17, 1995

PAUL REILLY, Plaintiff, -v.- POLYCHROME CORPORATION and SUN CHEMICAL CORPORATION, Defendants.


The opinion of the court was delivered by: JOHN S. MARTIN, JR.

 JOHN S. MARTIN, Jr., District Judge:

 I. Introduction

 This case arises out of the termination of plaintiff's employment with defendant Polychrome. Plaintiff, Paul Reilly, alleges that his refusal to report to work when instructed to do so was not a material breach of his contract and that he was therefore fired without cause. He further contends that Polychrome has unfairly withheld salary payments and a severance package under his written contract. Defendants have moved for summary judgment. For the reasons explained below, defendants' motion is granted.

 II. Background

 Plaintiff Reilly worked for Polychrome for fourteen years. Before his termination, plaintiff was Vice President and General Manager of Polychrome Americas, a division of Polychrome responsible for Polychrome's operations in the United States. Berkon Aff., Exh. D at 8, 12-13. In this capacity, Reilly was the most senior executive officer responsible for Polychrome's operations in the United States, and he reported directly to the Chief Executive Officer of the company.

 On June 12, 1980, Reilly entered into a written employment agreement with Polychrome (the "Agreement"). Berkon Aff., Exh. D at 13-16, Exh. G. The Agreement automatically renewed for successive one-year terms ending on December 31 of each year unless the Agreement was terminated at the expiration of any term by either party on six months written prior notice. Berkon Aff., Exh. G at P 2.

 The Agreement included the following provision:

 
[Polychrome] hereby employs [Reilly] to render exclusive and full-time services to [Polychrome] . . . as an executive employee and, in connection therewith, to perform such duties as he shall reasonably be directed to perform by the Board of Directors, the Executive Committee of the Board of Directors or such senior executive officers of [Polychrome] as the Board or the Executive Committee may designate.

 Berkon Aff., Exh. G. at P 1.1. The Agreement further provided:

 
In the event of material breach by [Reilly] in the performance of his obligations under this Agreement, [Polychrome] may at any time by written notice to [Reilly] terminate the Term of [Reilly's] employment hereunder.

 Berkon Aff., Exh. G. at P 4.3. Under the Agreement, if Reilly is terminated as the result of a material breach, Polychrome is not obligated to pay him any further salary or severance compensation from the date of termination. Berkon Aff., Exh. G. at P P 5.1-5.2.

 Reilly met with Ettinger several times in early January to discuss the possible relocation. In the context of his objection to such a move, plaintiff offered voluntarily to leave Polychrome upon the promise of a salary and severance package. Berkon Aff., Exh. D. at 420, 427-29, 446-51. Defendants rejected such an offer. At a meeting on January 15, 1993, after a futile attempt by Reilly to secure an agreement with Ettinger, Reilly gave Ettinger a letter stating that the Agreement required his consent to a move of his principal location of business and that he did not consent to a move to Columbus, Georgia. Berkon Aff., Exh. D. at 518-26; Exh. E. at 221-25; Exh. H. Reilly then informed Ettinger that he intended to take a vacation ...


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