Ross v. May Company

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Ross v. May Company

State: Illinois

Court: 1st District Appellate

Docket No: 1-06-0239 NRel

Case Date: 11/13/2007

Preview:Second Division November 13, 2007 No. 1-06-0239 GARY ROSS, Plaintiff-Appellant, v. MAY COMPANY d/b/a Marshall Field'S and Company, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County. No. 04 L 005796 Honorable Abishi C. Cunningham Judge Presiding.

JUSTICE HALL delivered the opinion of the court: Plaintiff-employee Gary Ross appeals from the trial court's order dismissing his third amended complaint pursuant to sections 2-615(a) and 2-619(a)(9) of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-615(a), 2-619(a)(9) (West 2002)). Plaintiff

argues that defendant-employer, May Company, d/b/a Marshall Field's and Company, breached his employment contract when it wrongfully terminated him by failing to discharge him in accordance with terms set forth in defendant's 1968 employee handbook, which, he maintains, created an implied-in-fact employment contract between him and defendant. He also argues

that his termination was in violation of certain oral representations made by an agent of defendants. The pleadings, affidavit, and other documentary information presented to the trial court reveal the following facts relevant to this appeal. Plaintiff was suspended and later terminated

1-06-0239 apparently as a result of drawing pictures depicting a female coworker in various violent situations. Plaintiff drew stick figures depicting the coworker being electrocuted, boiled, guillotined, run over by a train, shot out of a canon, tied to a rocket, and standing precariously under a 10,000 pound weight. The coworker's son brought the pictures to Defendant suspended plaintiff and

the attention of defendant.

told him to see a psychologist. Plaintiff alleged that after two visits, the psychologist found he was not a threatening individual and determined that he required no treatment other than perhaps treatment for suffering from depression as a result of the suspension and possible loss of a job he had held for nearly 40 years. defendant terminated plaintiff. Plaintiff claimed he was terminated without cause and was not afforded an appeal or review of the decision. Plaintiff Shortly thereafter,

sought recovery under a theory of breach of contract based upon the 1968 employee handbook. Plaintiff also sought recovery under

a theory of promissory estoppel, contending that he reasonably relied on promissory language contained in the employee handbook and on certain oral representations made by defendant's agent. The overriding issue in this appeal is whether, even if the 1968 employee handbook defendant issued to plaintiff gave rise to an employment contract altering plaintiff's status from an atwill employee to an employee who could only be terminated through -2-

1-06-0239 the use of progressive discipline as articulated in the handbook, did disclaimers inserted in revised handbooks modify the employment contract and convert him to an at-will employee. review convinces us that the disclaimers did not modify plaintiff's employment contract because he received no consideration. Under Illinois law, an employee hired without a fixed term is presumed to be an at-will employee whose employment may be terminated for any cause or reason, provided the employer does not violate clearly mandated public policy. Duldulao v. Saint Mary of Nazareth Hospital Center, 115 Ill. 2d 482, 489, 505 N.E.2d 314 (1987). Our supreme court crafted an exception to Our

this rule where " 'an employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present.' " Vickers v. Abbott Laboratories, 308 Ill. App. 3d 393, 407, 719 N.E.2d 1101 (1999), quoting Duldulao, 115 Ill. 2d at 490. Three requirements must be met for an employee handbook or policy statement to form an employee contract. "First, the

language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the

employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the

employee must accept the offer by commencing or continuing to -3-

1-06-0239 work after learning of the policy statement." Duldulao, 115 Ill. 2d at 490. When these requirements are met, "then the employee's

continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed." Duldulao, 115 Ill. 2d at 490. In this case, the trial court determined that promissory language set forth in the 1968 employee handbook defendant issued to plaintiff along with oral assurances of job security by defendant's agent created an employment contract between defendant and plaintiff, altering plaintiff's at-will status and binding defendant to certain procedures before it could terminate plaintiff's employment. However, the court went on to dismiss

plaintiff's breach of contract claim pursuant to section 2619(a)(9) of the Code, finding that disclaimers contained in revised employee handbooks issued to plaintiff served to invalidate his previously existing employment contract. The

trial court also dismissed plaintiff's promissory estoppel claim pursuant to sections 2-615(a) and 2-619(a)(9) of the Code, concluding that disclaimer language set forth in revised employee handbooks issued to plaintiff made it impossible for him to establish that his reliance on defendant's agent's oral assurances of job security was reasonable. Review of the record and relevant case law indicates the trial court erred in dismissing plaintiff's breach of contract claim pursuant to section 2-619(a)(9) of the Code. -4A motion to

1-06-0239 dismiss brought under this section of the Code admits the legal sufficiency of the claim but asserts an affirmative matter that defeats the claim or operates to avoid its legal effect. Smith v. Waukegan Park District, 373 Ill. App. 3d 626, 629, 869 N.E.2d 1093 (2007). Affirmative matter in this context "encompasses any

defense other than a negation of the essential allegations of the plaintiff's cause of action." Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732 (1993). If a

cause of action is dismissed pursuant to a section 2-619(a)(9) motion, the question on appeal is whether the "existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law." Kedzie & 103rd Currency Exchange, Inc., 156 Ill. 2d at 116-17. Our standard of review is de novo.

Adams v. American International Group, Inc., 339 Ill. App. 3d 669, 673, 791 N.E.2d 26 (2003). The affirmative matter defendant raises in this case is disclaimer language inserted in revised handbooks issued to plaintiff in 1987 or 1989. Defendant maintains that disclaimers

set forth in employee handbooks issued to plaintiff in the late 1980s unilaterally modified plaintiff's employment contract, converting him to an at-will employee. Plaintiff counters that

the disclaimers did not modify his employment status because they were not supported by consideration. The trial court determined that new benefits defendant -5-

1-06-0239 offered to plaintiff and his coemployees in 1990 constituted consideration for the unilateral modification of plaintiff's employment contract. The new benefits consisted of paid personal

days, short, and long-term disability, an insurance reimbursement plan, and a supplemental retirement savings plan. Plaintiff

accepted the new benefits and enrolled in the new long-term disability plan and in the enhanced supplemental retirement savings plan. The trial court found that plaintiff benefitted

from the new employee benefits while there was a detriment to defendant in that it incurred costs in implementing the new benefits. Plaintiff acknowledges that he experienced a benefit by receiving the enhanced pension and other new benefits. However,

he maintains that the new benefits he received from defendant did not serve as consideration supporting the unilateral modification of his employment contract because they were offered to all eligible employees and there was never any bargained-for exchange between him and defendant in which he agreed to modify or terminate his contract rights in exchange for the benefits. agree. "[M]odification of a contract is a change in one or more respects that introduces new elements into the details of the contract and cancels others, but leaves the general purpose and effect undisturbed." Nebel, Inc. v. Mid-City National Bank of Chicago, 329 Ill. App. 3d 957, 964, 769 N.E.2d 45 (2002). -6"[N]o We

1-06-0239 contract can be modified [or amended] in ex parte fashion by one of the contracting parties without the knowledge and consent of the remaining party to the agreement." Schwinder v. Austin Bank of Chicago, 348 Ill. App. 3d 461, 469, 809 N.E.2d 180 (2004). valid modification must satisfy all criteria essential for a valid contract, including offer, acceptance, and consideration." Nebel, Inc., 329 Ill. App. 3d at 964; Doyle v. Holy Cross Hospital, 186 Ill. 2d 104, 113, 708 N.E.2d 1140 (1999). The essential element of consideration is a bargained-for exchange of promises or performances that may consist of a promise, an act, a forbearance, or the creation, modification, or destruction of a legal relation. Restatement (Second) of Contracts

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