The opinion of the court was delivered by: Leighton, District Judge.
Plaintiff, Thomas Ring brings this diversity action to
recover damages for his alleged wrongful discharge as an
employee of defendant, R.J. Reynolds Industries. The cause is
before the court on defendant's motions to dismiss and for an
award of attorneys' fees and costs. For the following reasons,
both motions are granted. The facts as alleged, and taken as
true for the purpose of these motions, are as follows.
Plaintiff began working for defendant in 1969 as a salesman
and was continually employed until his termination in 1983.
His complaint makes no mention of any contract of employment;
however, he does allege that defendant had a policy wherein
employees would be given a reprimand and/or probation before
they were terminated. Defendant also had a written policy
whereby supervisors would spot check reports of sales
activity; and any defects in performance would be called to
the employee's attention by a written reprimand. He then
alleges that during fourteen years of his employment, he was
reprimanded twice and placed on probation once. He also
alleges that in 1982, one of his supervisors advised him to
falsify his sales report; and when he declined to do so, the
supervisor filed the false report. In 1983, another supervisor
checked his sales calls and discovered some 28 reporting
errors and summarily terminated his employment; plaintiff was
39 years at the time.
Plaintiff's complaint is stated in four counts. In Count I
he alleges that a contract of employment existed and that
defendant breached the contract by terminating him without
first issuing a reprimand or placing plaintiff on probation,
pursuant to defendant's established policy. In Count II
plaintiff purports to state a cause of action for retaliatory
discharge. He alleges that his termination at the age of 39
violated the public policy embodied in the Illinois Human
Rights Act, 68 Ill.Rev.Stat. ch. 68, § 1-101 et seq. Count III
alleges that plaintiff's termination was a violation of an
alleged covenant of good faith and fair dealing. As to Count
IV, the court is unable to ascertain what cause of action
plaintiff is attempting to plead. It appears that he is
alleging a "right" to receive reprimands, probation, notice and
a hearing from defendant prior to his termination. It is
undisputed that Illinois law controls this diversity action. A
review of the relevant Illinois statutes and decisions
discloses that each count of the complaint fails to state a
claim on which relief can be granted.
In Count I plaintiff attempts to state a claim for breach of
an employment contract. He does not allege that a written
employment contract exists, nor does he allege that there was
a specific stated duration to the employment relationship
between him and defendant. If an employment contract, whether
oral or written, does not specify a duration, then the
contract is terminable "at will", and the employment relation
can be terminated by either party at any time and for any
reason. See Rynar v. Ciba-Geigy Corp.,
560 F. Supp. 619 (N.D.Ill. 1983); Lukasik v. Riddell, Inc.,
116 Ill. App.3d 339, 72 Ill.Dec. 123, 452 N.E.2d 55 (1983). Because
plaintiff has not alleged that his contract of employment had a
specified duration, his employment is terminable "at will" and
he cannot state a claim for breach of an employment contract.
Plaintiff, although it is hard to discern what his
contentions are from his brief in response to the motion to
dismiss, apparently is arguing that the company is
contractually bound to adhere to the "reprimand and/or
probation prior to termination" policy. Thus, this policy
modified plaintiff's at will status and imposed a condition
which the company had to follow before it terminated
plaintiff. Generally, a personnel policy of an employer is not
part of an employment contract unless it is "bargained for."
Rynar v. Ciba-Geigy Corp., 560 F. Supp. at 624. In order for the
personnel policy to be bargained for and thus included in the
employment contract two facts must be established: (1) the
terms of the policy itself must establish that a mutuality of
obligation was intended when the policy was adopted; and (2)
the facts surrounding implementation of the policy must
establish that the policy modified a pre-existing employment
contract. Enis v. Contential Illinois National Bank,
582 F. Supp. 876 (N.D.Ill. 1984); Rynar v. Ciba-Geigy Corp., supra;
Sargent v. Illinois Institute of Technology, 78 Ill. App.3d 117,
33 Ill.Dec. 937, 397 N.E.2d 443 (1979); Carter v.
Kaskaskia Community Action Agency, 24 Ill.App.3d 1056,
322 N.E.2d 574 (1974). In this case, plaintiff's allegations fail
to adequately set forth a breach of contract claim. All
plaintiff alleges is the existence of defendant's policy of
issuing reprimands and probation before termination. He does
not allege, as he must, that the policy was implemented after
he started to work for defendant; Sargent v. Illinois Institute
of Technology, supra; or that the terms of the alleged policy
specifically or even implicitly suggest mutuality. Rynar v.
Ciba-Geigy Corp., supra.
In Count II plaintiff alleges that his termination was a
violation of the age discrimination provisions of the Illinois
Human Rights Act. Ill.Rev.Stat. ch. 68, § 1-101 et seq.
("IHRA"). He claims that defendant has "consistently,
deliberately and maliciously followed a course of conduct of
weeding out, culling and terminating their [sic]
employees . . . when such employees reach or become close to or
are over forty (40) years of age. . . ." Plaintiff then alleges
that he was wrongfully, maliciously and deliberately terminated
at the age of 39.
The IHRA make it unlawful for an employer to discriminate
against an employee on the basis of age; however, the Act only
applies to individuals who are between 40 and 70 years old.
Ill.Rev.Stat. ch. 68, § 1-103. Plaintiff admits that he was 39
years of age at the time of termination; therefore, he cannot
claim a violation of the IHRA because he was not in the age
group covered by the Act at the time of the alleged violation.
Furthermore, IHRA provides for extensive administrative review
prior to the filing of a suit. Section 8-111(D) of the Act
provides that no party can bring an action until he has first
exhausted his administrative remedies. Plaintiff does not
allege that he has done so. Therefore, Count II fails to state
a claim on which relief can be granted.
Plaintiff would have this court construe Count II as
alleging a cause of action in tort on the grounds that this
was a retaliatory discharge which contravened the public
policy underlying IHRA. Assuming arguendo, that the court
construes this count in the manner urged by plaintiff, it still
does not state a claim. While Illinois courts have recognized,
in limited circumstance, the tort of wrongful discharge in
contravention of public policy, see e.g. Palmateer v.
International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13,
421 N.E.2d 876 (1981); Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23
Ill.Dec. 559, 384 N.E.2d 353 (1978); they have not extended
this tort to situations where a plaintiff alleges that the
public policy violated is the policy contained in the IHRA.
Courts which have addressed
similar claims have held that no cause of action exists in
Illinois for wrongful discharge in violation of the public
policy contained in the IHRA. See Brudnicki v. General Electric
Co., 535 F. Supp. 84 (N.D.Ill. 1982); Dykstra v. Crestwood Bank,
117 Ill.App.3d 821, 73 Ill.Dec. 307, 454 N.E.2d 51 (1983).
Accordingly, even if this count is construed as urged by
plaintiff, it still fails to state a claim.
Count III alleges that when defendant terminated plaintiff,
the company violated a covenant of good faith and fair
dealing. Illinois courts, and courts in this district applying
Illinois law, have consistently recognized that no cause of
action exists for an alleged breach of a covenant of good
faith and fair dealing between an employer and employee.
See e.g. Gordon v. Matthew Bender & Co., Inc., 562 F. Supp. 1286
(N.D.Ill. 1983); Payne v. AHFI/Netherlands, B.V., 522 F. Supp. 18
(N.D.Ill. 1980); Manuel v. International Harvester Co.,
502 F. Supp. 45 (N.D.Ill. 1980); Martin v. Federal Life Insurance
Company, 109 Ill. App.3d 596, 65 Ill.Dec. 143, 440 N.E.2d 998
(1982). Accordingly, Count III also fails to state a claim on
which relief can be granted.
Count IV consists of a string of vague and conclusory
allegations from which the court is unable to determine what
kind of claim plaintiff is attempting to assert. In response
to the motion to dismiss, he does not address defendant's
contention that it is unable to discern what cause of action
he is alleging in Count IV, and in fact, he does not even
address this count in his response. This court is not under an
obligation to identify a cause of action for plaintiff when
his complaint and his response to defendant's motion to
dismiss does not do so. See Clark v. National Travelers Life
Insurance Co., 518 F.2d 1167, 1169 (6th Cir. 1975). As best as
the court can understand the allegations of this count,
plaintiff is attempting to allege that he was entitled to some
type of hearing before termination. This count, however, shares
the same fate as the others. Illinois courts have held that an
"employee is not entitled ...