The court pointed out that the manual went far beyond a mere
expression of employer policies and procedures as guidance or for
informational purposes, and declined to follow Sargent to the
extent that the court's rationale was inconsistent with that
opinion. Id., 127 Ill.App.3d at 263, 82 Ill.Dec. at 285, 468
N.E.2d at 832. Kaiser noted the split of authority on the 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
employer," regardless of whether the manual was "bargined for" or
not. Id. at 262, 82 Ill.Dec. at 284, 468 N.E.2d at 831; accord
Pudil v. Smart Buy, Inc., 607 F. Supp. 440 (N.D.Ill. 1985). Kaiser
was reaffirmed in Johnson v. Figgie, 132 Ill.App.3d 922, 87
Ill.Dec. 669, 477 N.E.2d 795.
However, the court pointed out that to recover, plaintiff must
show that the employer's policies were a part of a preexisting
employment agreement. That is, the policies must be implemented
after the employee was hired. This analysis, too, delves into the
adequacy of the consideration. Such reasoning was implicitly
rejected in Kaiser and Toussaint.
In Duldulao, the first District Appellate Court went even
further. On facts indistinguishable from those in the case at
bar, the court in Duldulao reversed the trial court decision
granting summary judgment for defendant. There was no written
employment contract, and the duration of the employment was
indefinite. "Plaintiff maintained that the defendant breached the
employment relationship by not affording her the benefit of the
progressive disciplinary policy for non-probationary employees
set forth in the employee handbook." Duldulao, 136 Ill.App.3d at
764, 91 Ill.Dec. at 471, 483 N.E.2d at 957. Following the Kaiser
court, the court concluded that the manual was binding on the
employer since it imposed obligations on both employee and
employer, even though it was not "bargained for." In Duldulao, as
in the case before us, the manual was apparently in effect prior
to the time the plaintiff was hired.
It is apparent, therefore, that the trend in Illinois, and the
better reasoned approach, is to bind employers to the terms of
their policy manuals when the manual imposes obligations on both
the employer and employee, regardless of whether the manual was
actually bargained for, and regardless of whether it modifies an
existing employment relationship, or was in effect at the time
the plaintiff was hired. See Kaiser, 127 Ill.App.3d at 262, 82
Ill.Dec. at 284, 468 N.E.2d at 831; Duldulao, 136 Ill.App.3d at
765, 91 Ill.Dec. at 472, 483 N.E.2d at 958; accord Patkus v.
Sangamon-Cass Consortium, 769 F.2d 1251 (7th Cir. 1985); Pudil,
607 F. Supp. 440; Kufalk v. Hart, 610 F. Supp. 1178, 1193 (N.D.Ill.
1985); Lockridge v. Caron Int'l, Inc, No. 85 C 3187, slip op.
(N.D.Ill. Sept. 24, 1985) (unpublished opinion); Haas v. William
Rainey Harper College, No. 84 C 5796, slip op. (N.D.Ill. Aug. 9,
1985) (unpublished opinion).
Here, the employer's manual imposed obligations on both the
employees and the employer. A fair inference from the portions of
the manual attached to plaintiff's complaint is that the employer
will only fire employees for cause.
For the foregoing reasons, we cannot say that it appears beyond
doubt that plaintiff can prove no set of facts in support of his
claim which would entitle him to relief. Therefore, we cannot
dismiss Count I for failure to state a claim. See Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02 (1957).
Count III attempts to make out a claim for intentional
infliction of emotional distress. To properly plead such a claim
the plaintiff must allege that the defendant intended to cause
emotional distress, or recklessly disregarded the probability of
causing emotional distress, and that the defendant's extreme and
outrageous conduct was the proximate cause of the plaintiff's
severe emotional distress. See, e.g.,
Palmateer v. International Harvester Co., 85 Ill.App.3d 50, 53,
40 Ill.Dec. 589, 592, 406 N.E.2d 595, 598 (3 Dist. 1980), rev'd
in part on other grounds, 85 Ill.2d 124, 52 Ill.Dec. 13,
421 N.E.2d 876 (1981); Stoecklein v. Illinois Tool Works, Inc.,
589 F. Supp. 139, 145-46 (N.D.Ill. 1984).
In relevant part, Count III states only that the "defendant
terminated plaintiff based on the claim that `he did not fit the
image of a Reader's Digest sales person,' despite his exemplary
sales record and in contravention of its policy for involuntary
termination." As a result, plaintiff claims to have manifested
signs of emotional distress in the form of severe depression and
Plaintiff has failed properly to allege three of the four
elements of the tort. He has not alleged that the defendant
either intended to cause emotional distress, or that the
defendant acted with such reckless disregard that it should have
known that severe emotional distress was substantially certain to
result. Plaintiff has not alleged any extreme or outrageous
conduct by defendant. He has merely alleged that the defendant
fired him without just cause, allegedly in violation of an
employment contract. Such conduct is not extreme or outrageous.
Nor are such allegations sufficient to withstand a motion to
dismiss. See, e.g., Stoecklein, 589 F. Supp. at 146 & n. 9; Pudil,
607 F. Supp. at 444 and cases cited therein. Finally, plaintiff
alleges only that he suffered severe emotional distress (and
insomnia). "Severe emotional distress" is a conclusion of law
which must be supported by factual allegations in the complaint.
Stoecklein, 589 F. Supp. at 146, n. 9. Plaintiff did allege
proximate cause. Plaintiff argues that, though the burden is
high, his complaint is sufficient to withstand a motion to
dismiss for failure to state a claim. If the only problem with
this claim were the lack of factual allegations on the severity
of his emotional distress, we might be inclined to agree.
However, the complete lack of an allegation of outrageous
conduct, and the apparent impossibility of making such an
allegation given the facts which are alleged, lead us inevitably
to dismiss Count III for failure to state a claim upon which
relief can be granted.
For the reasons stated above, defendant's motion to dismiss for
failure to state a claim is granted as to Count III, and denied
as to Count I. Count II has been withdrawn by the plaintiff.
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