Pudil also told Freeman that she would be leaving a position
that she had held for seven years to go to work for Optica.
Pudil had previously taken a leave of absence from that job to
accept a higher paying position. She did not tell Freeman of
this other position. In response, Freeman informed Pudil that
after a 90-day probationary period, she would be given an
increase in pay and become eligible for medical coverage.
Pudil began working at the Chicago Optica store on November
16, 1983. In either late December, 1983 or early January,
1984, all employees of the Optica Chicago store met with the
store manager. At this meeting, the store manager presented
Optica's employee manual to the employees by reading the full
text of the eight-page document to them and requiring each
employee to sign and return a half-page acknowledgement that
he or she had received, read and understood the document. The
manual contained: (i) a statement of the history of Optica;
(ii) instructions to employees on proper dress, courtesy to
customers and attendance; (iii) a statement of health,
vacation and eyeglass benefits available to employees and
promotion policy, and (iv) a list of those "offenses" that
would result in immediate discharge and those that would
result in discharge "after written notice."
During the course of her employment at Optica, Pudil
purchased a new car (trading in her old car) and finalized her
divorce (thereby losing health insurance under her
ex-husband's policy). She also "altered her lifestyle in
conformance with her increased earnings." Approximately ninety
days after Pudil began work at Optica, she received a note
from Freeman congratulating her on the quality of her work,
informing her that her current paycheck included an increase
in pay and expressing the hope that "you'll be with us for a
On May 15, 1984, Optica's Chicago store manager informed
Pudil that she was discharged, effective immediately. Optica's
assistant store manager offered to help Pudil find a new job
and Optica paid Pudil a severance allowance at the time of her
termination. Although Pudil asked the reason for her
discharge, Optica refused to give any reason. Pudil was
distressed by the loss of her job at Optica and consulted her
personal doctor, who prescribed tranquilizers.
1. Breach of Contract
Pudil concedes that, under Illinois law, a written or oral
employment contract which does not specify the duration of
employment creates an employment "at-will" relationship,
terminable by either party at any time, with or without cause.
See, e.g., Gordon v. Matthew Bender & Co., 562 F. Supp. 1286,
1290-92 (N.D.Ill. 1983); Goodman v. Board of Trustees,
511 F. Supp. 602, 606 (N.D.Ill. 1981). Since Pudil does not contend
that her original engagement to work at Optica's Chicago store
specified any duration, she must be viewed as an employee
"at-will." Nonetheless, she maintains that the employee manual,
distributed after she began her work at Optica, either modified
her original engagement or should be read in interpreting that
The Illinois Supreme Court has yet to pass on the effect of
an employee manual upon the employer's discretion to terminate
"at-will" employees. Therefore, this Court must attempt to
predict the path the Illinois Supreme Court would follow.
In re Air Crash Disaster, 701 F.2d 1189, 1197 (7th Cir.), cert.
denied, ___ U.S. ___, 104 S.Ct. 204, 78 L.Ed.2d 178 (1983);
Roberts v. Western-Southern Life Ins. Co., 568 F. Supp. 536, 540
(N.D.Ill. 1983). In predicting how the Illinois Supreme Court
would decide this issue, the decisions of the Illinois
Appellate Court, id., and decisions from other jurisdictions,
Martin v. Harrington and Richardson, Inc., 743 F.2d 1200, 1202
(7th Cir. 1984), are helpful indicators.
Illinois case law on this issue begins with Carter v.
Kaskaskia Community Action Agency, 24 Ill. App.3d 1056,
322 N.E.2d 574 (5th Dist. 1974). In Carter, the state court
found that an employer must abide by the grievance procedures
set forth in its personnel policy manual where the manual
contained provisions which created mutual obligations for the
employer and its employees and the employee assented to the
manual as a modification of his employment relation.
Subsequently, Sargent v. Illinois Institute of Technology,
78 Ill. App.3d 117, 33 Ill.Dec. 937, 397 N.E.2d 443 (1st Dist.
1979) gave a narrow reading to Carter, holding that since the
personnel manual was given to the employee when he began his
employment and contained no provisions imposing conditions on
him beyond his required duties, the manual was not "bargained
for" and so unenforceable. More recently another appellate
court applied Carter to require a county board to honor its
sheriff's announcement to his deputies that they would receive
a raise. Scutt v. LaSalle County Board, 97 Ill. App.3d 181, 53
Ill.Dec. 21, 423 N.E.2d 213 (3rd Dist. 1981).
Relying on the decision in Sargent, two published opinions in
this district and additional unpublished opinions, e.g.,
Brundage v. Trans World Airlines, Inc., No. 80 C 6701, slip op.
at 7-9 (N.D.Ill. March 29, 1984) (Hart, J.), have determined
that the provisions of personnel manuals do not bind employers.
In Rynar v. Ciba-Geigy Corp., 560 F. Supp. 619 (N.D.Ill. 1983),
Judge Will found that although the manual contained terms
suggesting a mutuality of obligation, the employees had not
assented to the modification because they were only generally
aware of its existence but had not reviewed or approved its
specific provisions. Citing Rynar, Judge Bua later found that a
manual provided to the employee at the time she was hired did
not bind the employer. Enis v. Continental Illinois National
Bank & Trust, 582 F. Supp. 876 (N.D.Ill. 1984). See also
However, in a subsequent decision, yet another Illinois
Appellate Court has considered the issue, rejecting the narrow
reading given Carter by Sargent. Kaiser v. Dixon, 127 Ill. App.3d 251,
82 Ill.Dec. 275, 283-85, 468 N.E.2d 822, 830-32
(2nd Dist. 1984). Kaiser carefully noted the split of authority
on this issue in other jurisdictions, but found the "better
reasoned approach" to be to "bind the employer to the terms in
its policy manual" whenever the manual "imposes obligations on
both the employee and the employer," regardless of whether the
manual was "bargained for." Id. See also Brooks v. Trans World
Airlines, Inc., 574 F. Supp. 805, 809 n. 1 and 2 (D.Col. 1983)
(listing additional state authorities from other jurisdictions
on each side of this issue).
This Court need not decide how the Illinois Supreme Court
would resolve the dispute between Kaiser and prior decisions as
to the requisite level of employee assent to a modification of
the employment relation proposed by the employer through a
personnel manual. Pudil and the other Chicago employees of
Optica assented to the manual as required by Carter, Sargent,
Rynar and Enis. Taken together, the special meeting called by
management, the formal reading of the full text of the manual
and the employees' signing and return of acknowledgements that
they understood the manual demonstrate assent.
As to the requisite level of mutuality, this Court must
agree with the decision in Kaiser that where the manual imposes
obligations on both employer and employee, the employer is
bound by the manual. The approach taken in Kaiser is more
consistent with the Illinois Supreme Court's approach to
mutuality in other contractual situations, e.g., S.J. Groves &
Sons Co. v. State of Illinois, 93 Ill.2d 397, 67 Ill.Dec. 92,
95, 444 N.E.2d 131, 134 (1981) (mutuality is only a requirement
that both parties are bound in some way by an agreement and is
satisfied by consideration), than is the "bargained for"
analysis of Sargent. Here, as in Kaiser, the manual
contains provisions "governing employee evaluation [p. 8],
employee conduct, work habits and attitudes [pp. 1, 3, 4],
holiday, sick leave, time off and vacation policies [pp. 1, 2,
5],. . . . discipline . . . and dismissal procedures [pp. 6,
7]." Although Optica's
manual is not nearly as detailed as the eighty-three page
manual dealt with in Kaiser, Optica's manual contained
provisions covering many of the same subject areas. Taken
together with Optica's continuing policy of a 90-day
probationary period, the manual evidences a sufficient
mutuality of obligation. Hence, the defendants' motion for
summary judgment must be denied as to Count I.
2. Infliction of Emotional Harm
Next, Pudil asserts that Freeman's actions in terminating
her with knowledge that she would rely on his representations
of job security constitute reckless or intentional infliction
of emotional distress. To prevail on a claim of infliction of
emotional distress, Pudil must demonstrate that the
defendants' "extreme and outrageous" conduct caused her
"severe" emotional distress, and that the defendants acted
either intentionally to cause such distress or with knowledge
of facts that would indicate such distress was substantially
certain to result from their actions; i.e., recklessly.
Stoecklein v. Illinois Tool Works, 589 F. Supp. 139, 144-5
(N.D.Ill. 1984); Heying v. Simonaitis, 126 Ill. App.3d 157, 81
Ill.Dec. 335, 341, 466 N.E.2d 1137, 1143 (1st Dist. 1984).
Especially in cases where the plaintiff's emotional distress
has arisen during the course of employment or upon its
termination, Illinois law strictly demands a showing of
"extreme and outrageous" behavior. See, e.g., Stoecklein, supra
at n. 9 (employer's alleged conduct of demoting then later
forcing employee into retirement because of his age, then
reneging on promise of severance pay and job counseling not
sufficiently outrageous); Balark v. Ethicon, Inc., 575 F. Supp. 1227,
1230-32 (N.D.Ill. 1983) (employer's alleged refusal to
reinstate employee despite arbitration award in his favor
together with allegedly baseless referral of his name to FBI
for investigation not extreme and outrageous); Witkowski v. St.
Anne's Hospital, 113 Ill. App.3d 745, 69 Ill.Dec. 581,
447 N.E.2d 1016 (1st Dist. 1983) (employer's alleged discharge for
employee solely due to her eligibility for disability benefits
together with employer's allegedly false charges of misconduct
made to justify discharge not sufficiently outrageous). See
also Morrison v. Sandell, 112 Ill. App.3d 1057, 68 Ill.Dec.
556, 446 N.E.2d 290 (4th Dist. 1983) (co-worker's conduct);
Plocar v. Dunkin's Donuts of America, Inc., 103 Ill. App.3d 740,
59 Ill.Dec. 418, 431 N.E.2d 1175 (1st Dist. 1981)
(franchiser's conduct). Neither the conduct complained of by
Pudil nor the injury suffered by her is sufficiently
distinguishable from that alleged in the cited decisions to
avoid dismissal. The defendants' motion must be granted as to
3. Promissory Estoppel
Pudil's final claim is that the defendants are estopped by
their course of conduct (Freeman's alleged representations at
the job interview, the distribution of the personnel manual
and the notification that Pudil had successfully completed her
probationary period) from refusing to continue her employment.
Pudil concedes that in order to establish promissory estoppel
under Illinois law she must show: (1) a promise; (2) which
should reasonably have been expected by the promissor to
induce substantial action or forebearances by her; (3) which
induced such action or forebearance; and (4) which must be
enforced to avoid injustice. Kulins v. Malco, 121 Ill. App.3d 520,
76 Ill.Dec. 903, 910, 459 N.E.2d 1038, 1045 (1st Dist.
The defendants argue that the record fails to reveal an
unambiguous promise to Pudil. See Rynar, 560 F. Supp. at 625-26;
Dale v. Groebe & Co., 103 Ill. App.3d 649, 59 Ill.Dec. 350,
354, 431 N.E.2d 1107, 1111 (1st Dist. 1981). In response, Pudil
contends that such an unambiguous promise may be' found in the
"totality of circumstances" here, including the defendants'
conduct, citing Hoos v. Hoos, 86 Ill. App.3d 817, 42 Ill.Dec.
174, 180, 408 N.E.2d 752, 758 (1st Dist. 1980). This issue need
not be decided.
Accepting Pudil's position that she has shown a sufficiently
unambiguous promise, she has failed to present evidence of
sufficient harm resulting from her reliance on this promise.
Pudil asserts that she (1) traded in her six-year old car for
a new one, incurring a debt; (2) finalized her divorce, losing
her health insurance under her former husband's health plan;
and (3) "altered her lifestyle in accordance with her secured
position." These actions do not constitute sufficient reliance
on her part to necessitate enforcement of the defendants'
"promise" so as to avoid injustice.
"In practice, those cases which have found a change in
position for the worse involved rather egregious circumstances
where the [plaintiff] has acted in good faith and the
[defendant] has received an unwarranted benefit." Hoos v. Hoos,
42 Ill.Dec. at 179, 408 N.E.2d at 757. Further, promissory
estoppel permits recovery of only such damages as "are
necessary to prevent injustice." Gerson Electric Construction
Co. v. Honeywell, Inc., 117 Ill. App.3d 309, 72 Ill.Dec. 851,
853, 453 N.E.2d 726, 728 (1st Dist. 1983). These elements of a
claim of promissory estoppel tend to merge; the more
substantial the benefit conferred or the detriment endured, the
greater the injustice that will occur absent enforcement of the
promise. See Bolden v. General Accident, Fire & Life Assurance
Corp., 119 Ill. App.3d 263, 74 Ill.Dec. 804, 807,
456 N.E.2d 306, 309 (1st Dist. 1983). Here, Pudil has not taken any action
that will be for naught because of her discharge by the
defendants. Her new car does not gain or lose any value by
virtue of the loss of her employment at Optica. Pudil's
decision to obtain a divorce (and consequent loss of her
husband's insurance benefits) did not hinge upon her continued
employment at Optica and the benefits she derives from her
divorce are not reduced by her discharge. Hence, no injustice
will result when the defendants' "promise" is not enforced.
IT IS THEREFORE ORDERED that the defendants' motion for
summary judgment is granted as to Counts II and III, but is
denied as to Count I. Judgment will enter on Counts II and III
in favor of Smart Buy, Inc. and Marvin Freeman and against
Carol A. Pudil.
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