that the only person that could eliminate me would be myself
and that would be by not doing my job," and "it's a permanent
position," and "you're the first woman here. There's no
problem. You have a permanent job." Wilder v. Butler Mfg. Co.,
178 Ill.App.3d 819, 128 Ill.Dec. 41, 42, 533 N.E.2d 1129, 1130
(3rd Dist. 1989). The Third District felt that plaintiff's
testimony had been contradictory and that these promises were
not clear and definite.
In Heuvelman v. Triplett Electrical Instrument Co., (1959)
23 Ill. App.2d 231, 161 N.E.2d 875, the plaintiff was told by his
employer that his job as a salesman was a permanent position.
The Heuvelman court found that there were no definite and
certain terms which could give rise to a contract for permanent
employment and thus upheld summary judgment for the employer.
In all of the cited cases, the courts have found the
statements relied upon by plaintiffs to be informal expressions
of good will and hope for eternal association — optimistic
expressions concerning the future which were never intended to
be anything more and which are insufficient to establish an
oral contract for permanent employment.
The Court believes that the language of promise recited by
Taylor in the present case must be similarly characterized. It
simply does not convey a clear and definite promise nor
"descend to the kind of specificity that ordinarily attends
discussion of contractual terms." Eastman, 930 F.2d at 1177.
The alleged statements are insufficient to serve as a basis for
a valid and enforceable contract. Thus, in light of Tolmie and
the underlying state cases, Taylor's claim that he and Canteen
were parties to such an oral contract of permanent employment
cannot withstand scrutiny and the presumption that Taylor was
nothing more than an at-will employee stands unrebutted.
STATUTE OF FRAUDS
Under the Illinois Statute of Frauds, oral agreements that
are not capable of being fully performed within one year, such
as a contract for permanent employment, are unenforceable
"unless the promise or agreement upon which such action shall
be brought, or some memorandum or note thereof, shall be in
writing, and signed by the party to be charged therewith." Ill.
Rev.Stat. ch. 59 ¶ 1. Having found that no contract was formed
because the alleged statements of Canteen were not sufficiently
clear and definite and were not supported by the requisite
consideration, there is no basis for application of the Statute
of Frauds defense. Therefore, further consideration of its
application is unnecessary.
In passing, the argument of Taylor that the Statute of Frauds
is inapplicable because he had partially performed under the
oral contract, is without merit. The doctrine of partial
performance is an equitable remedy, applicable in the absence
of a legal remedy. Gibbons v. Stillwell, 149 Ill.App.3d 411,
102 Ill.Dec. 864, 500 N.E.2d 965 (1986). When past performance
by one party changes the relation of the parties, and adequate
compensation for the loss by a judgment for damages, or
restoration to their former condition is impossible, the
Statute of Frauds will not act as a bar to the completion of
the contract. Such is not the case here as Taylor does not
claim that compensatory damages are unavailable to him.
Additionally, there are sound public policy reasons for
refusing to apply the doctrine of partial performance in the
employment context. To allow an employee to escape the Statute
of Frauds just because he commenced work in his new position
would render the full performance requirement of the statute
meaningless. This would mean that in any case where the
plaintiff alleged that he had given up one job and started work
under the terms of an oral employment contract, the employer
would be precluded from asserting the Statute of Frauds. The
public policy of Illinois to deter false and fraudulent claims
which is embodied in the Statute of Frauds would be completely
nullified if oral contracts for permanent employment did not
have to comply with its requirements. Mariane v. School
Directors of District 40,
154 Ill.App.3d 404, 506 N.E.2d 981, 983; appeal denied,
116 Ill.2d 561, 515 N.E.2d 111 (1987).
Canteen also correctly argues that Taylor's claim under the
promissory estoppel doctrine is not an exception to the Statute
of Frauds. Canteen relies upon the Seventh Circuit opinion in
Evans v. Fluor Distribution Companies, Inc., 799 F.2d 364 (7th
Cir. 1986) which held that an employee's action based on the
doctrine of promissory estoppel was barred by the Illinois
Statute of Frauds where the alleged oral agreement could not be
performed in one year. The Evans holding was said to be
mandated by the Illinois Supreme Court's decision in Sinclair
v. Sullivan Chevrolet Co., 31 Ill.2d 507, 510, 202 N.E.2d 516
(1964) that a claim of promissory estoppel does not overcome or
preclude a Statute of Frauds defense in a case involving a
contract for employment.*fn3 The Evans court noted the
mischief that can occur with the use of promissory estoppel in
the employment context:
Employment at will . . . remains the dominant
type of employment relationship in the country,
and would be seriously undermined if employees
could use the doctrine of promissory estoppel to
make alleged oral contracts of employment
enforceable. Reliance is easily, perhaps too
easily, shown in the employment setting. . . .
Evans, 799 F.2d at 368 n. 3 (quoting Goldstick v. I.C.M.
Realty, 788 F.2d 456 at 465).
In addition to contending that promissory estoppel bars
Canteen from denying the enforceability of the contract because
of the Statute of Frauds, Taylor also claims that the doctrine
serves as an alternate basis for Canteen's obligation to retain
him in its employ. Taylor argues that summary judgment must be
denied because Count II is really a promissory estoppel claim
for which genuine issues of material fact exist. Canteen points
out that Taylor pled a contract claim and not a claim based
upon promissory estoppel; and a plaintiff is not allowed to
raise new claims in response to a Motion for Summary Judgment.
See Readmond v. Matsushita Electric Corp., 355 F. Supp. 1073
(E.D.Pa. 1973). Promissory estoppel constitutes a cause of
action separate and distinct from one sounding in contract.
Plaintiff argues that, since promissory estoppel has its
origins in quasi-contract and since all of its elements have
been adequately set forth along with those of the contract
claim, it is properly pled in Count II. The Court agrees that
the elements of a claim for promissory estoppel are
sufficiently set forth in Count II, and the Court will
therefore treat that Count as alleging a claim for breach of
contract and a promissory estoppel claim in the
Taylor's reliance on the promissory estoppel doctrine must
fail. It is a cause of action which comes into play when the
absence of consideration precludes a finding that there is a
valid contract. In the right circumstances, Plaintiff's
reasonable and detrimental reliance constitutes a substitute
for the requisite consideration in contract formation. In order
to establish a claim based on promissory estoppel, a plaintiff
must plead and prove (1) that defendant made an unambiguous
promise, (2) that there has been reliance on the promise, (3)
that the reliance was expected and foreseeable, and (4) that
plaintiff relied on the promise to his detriment. Quake
Construction v. American Airlines, Inc., 141 Ill.2d 281,
565 N.E.2d 990, 1004 (1990).
An initial (and fatal) flaw in Taylor's assertion of
promissory estoppel is the
absence of an unambiguous promise. The same alleged promises to
Taylor serve as the basis both for his claim grounded in
contract and that premised on promissory estoppel, and they are
subject to the same legal analysis.
For purposes of summary judgment analysis only, the Court
will accept as true both Plaintiff's assertion that a promise
was made and his version of the promissory language. He was
first assured that "he had nothing to worry about" and then
that "he would not have to be concerned with job security"
because he could work at the management job "as long as he
wished or until he retired." Language which gives Taylor the
option to continue on his job "so long as he wants" is
tantamount to employment at-will and when coupled with language
that he has a job "until he retires" is patently illusory.
There is no definite duration to the alleged job offer. See
Koch v. Illinois Power Co., 124 Ill.Dec. 461, 465 (1988).
Nothing in this language unambiguously promises Plaintiff job
permanency or tenure; nothing assures him that he can be
terminated only for cause. Indeed, nothing even hints at the
expected duration of his employment or anticipates and
addresses any other usual and customary contract terms. This
language on which Taylor relies is neither clear and definite
for purposes of contract formation nor unambiguous for purposes
of promissory estoppel. Because as a matter of law Taylor
cannot prove the first element of a claim for promissory
estoppel, he is not entitled to relief on that claim.
Because the Court finds that Taylor has failed to allege and
prove the existence of both a clear and definite promise and
adequate consideration, he has failed to prove as a matter of
law that he had a valid contract for permanent employment, and
he has failed to rebut the presumption that he was nothing more
than an employee at-will. For all of the above reasons, the
Motion of Canteen for Summary Judgment as to Count II of the
First Amended Complaint is GRANTED.