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09/28/88 Richard E. Koch, v. Power Company Et Al.

September 28, 1988





529 N.E.2d 281, 175 Ill. App. 3d 248, 124 Ill. Dec. 461 1988.IL.1464

Appeal from the Circuit Court of La Salle County; the Hon. William P. Denny, Judge, presiding.


JUSTICE SCOTT delivered the opinion of the court. STOUDER, P.J., and WOMBACHER, J., concur.


Plaintiff, Richard E. Koch, originally brought this action in 1984 in the circuit court of La Salle County, charging the defendant Illinois Power Company with breach of an employment contract, breach of an implied covenant of good faith and fair dealing, wanton and willful breach of contract, violation of plaintiff's constitutional right of privacy, and intentional infliction of extreme emotional distress. The original complaint in this action also cited one count against defendant Carroll Marchant for tortious interference with contract. Defendants moved for summary judgment on all counts in September 1985; the trial court granted the defendants' motion on four of the six claims. After redeposing plaintiff, defendants moved again, in October 1986, for summary judgment on the two remaining counts, which claimed breach of contract and tortious interference with contract. In December 1986, plaintiff filed a motion to amend his complaint to reflect a recent development in the law. This appeal arises from the trial court's order, dated February 4, 1987, granting defendants' second motion for summary judgment and denying plaintiff's motion to amend. Plaintiff appeals the portions of the order granting summary judgment which involve IPC and the denial of his motion to amend. Plaintiff also appeals the trial court's denial of his August 1987 motion for leave to depose an IPC official.

This appeal presents several issues for decision: (1) whether the trial court properly granted summary judgment for defendant IPC and against plaintiff, finding that there was no oral contract between the parties and that any alleged contract failed for lack of consideration and lack of mutuality; (2) whether the trial court properly granted summary judgment in favor of IPC and against plaintiff, finding that any alleged oral contract failed under the Statute of Frauds (Ill. Rev. Stat. 1985, ch. 59, par. 1 et seq.); (3) whether the trial court properly granted summary judgment in favor of IPC on plaintiff's claim that a collective bargaining agreement between IPC and the Internal Brotherhood of Electrical Workers was incorporated into plaintiff's alleged employment contract; (4) whether the trial court properly granted summary judgment in the favor of IPC in finding that the IPC "Guidelines for Discipline" did not create a contract with plaintiff; (5) whether the trial court properly denied plaintiff's motion to amend his complaint; and (6) whether the trial court properly denied the plaintiff's motion for leave to take the deposition of an IPC official. IPC initially employed plaintiff in 1953 at his Decatur, Illinois,

In 1979, plaintiff developed a social relationship with Debra Hardersen, a unionized employee at the La Salle IPC facility. IPC and Carroll Marchant, plaintiff's supervisor, believed this relationship created turmoil in the office. After initially recommending a salary increase and favorable rating for plaintiff at his annual evaluation in February 1982, Marchant rescinded these findings due to the controversy surrounding the social relationship. Marchant told plaintiff that the decision would be reviewed if changes in the situation so warranted. After the February rescission, several IPC officials, including Marchant, met with plaintiff numerous times to discuss the interoffice turmoil and methods to stop it. IPC informed plaintiff that his actions constituted sexual harassment as plaintiff was giving Ms. Hardersen special treatment while in a social relationship with her. IPC suggested in April 1982 that plaintiff either obtain Ms. Hardersen's resignation or accept a transfer to another IPC facility without a salary reduction. When plaintiff refused the transfer, IPC viewed the action as a resignation effective May 11, 1982.

Plaintiff based his contract claims on oral representations allegedly made to him when he first accepted promotion to IPC's supervisory ranks in 1964 and on disciplinary guidelines issued by IPC on September 1, 1981. Plaintiff claims that when Merlin Barber, an IPC official, approached him about the nonunion welding training advisor position, Barber allegedly promised plaintiff that he would retain the union contract protection against job termination if he accepted the job change. Plaintiff claimed to have relied on Barber's representation when deciding to accept the IPC offer, which plaintiff also claimed was for permanent employment.

In 1981, IPC issued Guidelines on Discipline for Illinois Power Company (Guidelines), an employer's handbook. Plaintiff received a copy of the guidelines due to his status as a supervisor. The handbook describes a suggested disciplinary process for use at IPC facilities, emphasizing rehabilitation and progressive discipline. Plaintiff argues that the guidelines created a contract for employment with IPC, which his discharge violated.

To be valid, an oral contract for permanent employment needs to contain a clear and definite agreement and be supported by sufficient consideration. (Ladesic v. Servomation Corp. (1986), 140 Ill. App. 3d 489, 488 N.E.2d 1355, citing Titchener v. Avery Coonley School (1976), 39 Ill. App. 3d 871, 350 N.E.2d 502.) The purported contract in this case lacked both of these elements.

The oral agreement between plaintiff and IPC was anything but clear and definite. Plaintiff could not recall the language used by Merlin Barber in making the oral contract for IPC. He expressed his belief that he would have some sort of representation in disputes with IPC but was unable to state anything more specific than the idea he was to have the same protection he had had while in the union. Clear and definite language is required as courts should not rewrite a contract by imposing an obligation where none is intended. (Eisele v. Ayers (1978), 63 Ill. App. 3d 1039, 381 N.E.2d 21.) In this case, the language of the oral contract was so uncertain the court would have had to restructure it with new, more definite terms for an enforceable agreement to exist. The alleged oral contract must fail for lack of clarity and definition.

The purported contract also fails for lack of sufficient consideration. Plaintiff claims that his relinquishment of a union position in reliance on an oral contract for permanent employment constitutes sufficient consideration. Some disagreement exists in Illinois courts on the issue whether such an action will support a contract for permanent employment. The better view, however, states that foregoing a position is not adequate consideration. See Heuvelman v. Triplett Electrical Instrument Co. (1959), 23 Ill. App. 2d 231, 161 N.E.2d 875; Titchener, 39 Ill. App. 3d 871, 350 N.E.2d 502; Ladesic, 140 Ill. App. 3d 489, 488 N.E.2d 1355.

In Heuvelman, an employee purportedly rejected an offer of employment from a competing company in reliance on his employer's oral promise of permanent employment. The plaintiff/employee in Titchener allegedly abandoned a tenured position with one school district in exchange for the oral promise of permanent employment of another district. In each case, the respective court found that the plaintiff's actions were not sufficient consideration to support the alleged ...

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