MEMORANDUM OPINION AND ORDER
Before the Court is Defendant KFC National Management Company's Motion to Dismiss Counts II, III and IV of Plaintiff Paul Talanda's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
Plaintiff Paul Talanda ("Plaintiff") was hired by Defendant KFC National Management Company ("Defendant") in 1978 and promoted first to the position of Restaurant Manager in 1984 and then to the position of Restaurant Training Manager in 1986. (Complaint at PP 18-20.) As a Restaurant Training Manager, Plaintiff was in charge of hiring, firing, training and management of KFC employees at the KFC restaurant in McHenry, Illinois. Id. at P 24.
On or about September 25, 1993, Plaintiff hired Dorothy Bellson for a position at the front counter in the McHenry KFC. Id. at P 28. Because of a severe facial impairment, Dorothy Bellson is considered to have a disability as that term is defined in § 3(2) of the Americans with Disabilities Act, 42 U.S.C. § 12117. Id. at PP 14-15.
Four days later, on September 29, 1993, Joanne Overly, Plaintiff's supervisor, telephoned Plaintiff and instructed Plaintiff to remove Bellson from the front counter because Overly did not like Bellson's facial impairment. Id. at P 30. Plaintiff refused to remove Bellson from the front counter. Id. at P 33. On October 19, 1993, Plaintiff was terminated by Overly and Resources Director John Malloy for insubordination due to of his refusal to remove Bellson from the restaurant's front counter. Id. at P 35.
Plaintiff filed an employment discrimination charge with the Equal Employment Opportunity Commission ("EEOC") on October 22, 1993. Id. at P 2. Plaintiff received a Notification of Right to Sue on December 30, 1993. Id. at Exhibit A. On March 1, 1994, Plaintiff filed the Complaint in the instant case alleging a claim of retaliatory discharge in violation of the Americans with Disabilities Act, 42 U.S.C. § 12117. In addition to his federal claim, Plaintiff alleges various state claims including: breach of employment contract (Count II), promissory estoppel - promise not to discriminate (Count III), promissory estoppel - not to be fired for following corporate policy (Count IV), retaliatory discharge (Count V), defamation (Count VI), false light (Count VII), tortious interference with an economic expectancy (Count VI II) and intentional infliction of emotional distress (Count IX).
Defendant requests that this Court dismiss Counts II, III and IV for failure to state a claim on which relief can be granted. For the following reasons, Defendant's Motion to Dismiss is granted.
When reviewing a motion to dismiss, the court views all of the facts alleged in the complaint, as well as any inferences reasonably drawn therefrom, in a light most favorable to the plaintiff. Mosley v. Klincar, 947 F.2d 1338, 1339 (7th Cir. 1992). Dismissal is appropriate only if it is clear that there is no relief that can be granted under any set of facts that can be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984).
Count II - Breach of Employment Contract
According to the allegations in the Complaint, Defendant issued all of its employees an employee handbook. (Complaint at P 47.) The employee handbook allegedly contains a promise not to discriminate against Defendant's employees and a mandate that KFC employees not discriminate against other KFC employees or against customers. Id. at P 48. Plaintiff states that the manner in which the employee handbook was disseminated led him to reasonably believe that the handbook constituted an offer including the terms and conditions of Plaintiff's employment with Defendant. Id. at P 49. Plaintiff accepted the offer with full knowledge of the terms and conditions. Id. at P 51. Plaintiff alleges that Defendant breached the contract by terminating Plaintiff for not following Defendant's instruction to remove Bellson from the front counter. Id. at P 54. Defendant's instruction was allegedly in direct conflict with the implied terms and conditions of Plaintiff's employment as established by the employee handbook. Id.
Although not clear from the language of the Complaint, the employee handbook to which Plaintiff refers is "KFC's Team Member Handbook" and the section of the handbook, on which Plaintiff relies, is the "Fair & Equal Treatment" section.
(Attached to Plaintiff's Response to Defendant's Motion to Dismiss as Exhibit A.) The "Fair & Equal Treatment" section states in relevant part,
KFC forbids treating associates or customers differently because of their race, age, sex, national origin, citizenship, disability or religion. You are required to treat all persons with respect. Your discriminatory treatment of others will result in disciplinary action up to and including losing your job.
(KFC Team Member Handbook at 12.)
Defendant asserts that the Fair & Equal Treatment section of the KFC Team Member Handbook is merely a restatement of federal and state law prohibiting discriminatory treatment in employment and accommodations. Defendant states further that anti-discrimination policies which merely restate the law are not contracts because such policies lack consideration. Accordingly, as the Fair & Equal Treatment section is not a valid and enforceable contract, Defendant requests that this Court dismiss Plaintiff's breach of contract claim.
In Duldulao v. Saint Mary of Nazareth Hospital, 115 Ill. 2d 482, 505 N.E.2d 314, 318, 106 Ill. Dec. 8 (Ill. 1987), the Illinois Supreme Court held that an employee handbook may create enforceable contract rights if the traditional requirements for contract formation are present. The Duldulao court described the traditional requirements for contract formation as follows:
First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. When these conditions are present, then the employee's continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed.
Id. Tracking the language of Duldulao, the Plaintiff has pled that the Fair & Equal Treatment section of the KFC Team Member Handbook contained a clear promise that Defendant would discipline and possibly terminate any employee who discriminated against a fellow employee or against a customer. (Complaint at P 48.) Additionally, Plaintiff has alleged that the KFC Team Member Handbook was disseminated in such a manner that the Plaintiff reasonably believed it to be an offer of the terms and conditions of his employment. Id. at P 49. According to Plaintiff the offer, memorialized in the Fair & Equal Treatment section, also implied that the Plaintiff would not be terminated if he adhered to the terms of the Defendant's anti-discrimination policy.
Id. at P 50. Finally, Plaintiff states that he accepted Defendant's offer by commencing and continuing to work after he learned of Defendant's anti-discrimination policy. Id. at P 51.
Relying on Duldulao's mandate that the employer's policy statement be analyzed in terms of the traditional requirements of contract formation: offer, acceptance and consideration, the court in Willis v. Evans Products Co., 1987 U.S. Dist. LEXIS 4175, No. 86 C 9111, 1987 WL 11337 *5-6 (N.D. Ill. May 14, 1987), held that the employer's equal employment opportunity policy statement did not give rise to a contract because the policy was merely a restatement of the employer's preexisting legal duty under the Age Discrimination in Employment Act, and thus unsupported by consideration. See also, Sample v. Aldi, Inc., 1994 U.S. Dist. LEXIS 1518, No. 93 C 3094, 1994 WL 48780 (N.D. Ill. Feb. 15, 1994). Both the Willis and Sample courts distinguished the employee policy in Duldulao because it imposed a new legal duty on the employer. In Duldulao, the employer's offer to provide a sequence of disciplinary and grievance procedures prior to an employee's termination was an additional duty not previously required by law. Willis, 1987 U.S. Dist. LEXIS 4175, 1987 WL 11337 at *6. Thus, the agreement in Duldulao was supported by consideration because in the absence of such procedures, the employment relationship would have been presumed to be one which was terminable at will. Id.
Plaintiff counters that the instant case is distinguishable from Willis and Sample. In Sample, the anti-discrimination policy, on which the plaintiff relied stated,
It is the policy of ALDI to provide Equal Employment Opportunity to all qualified employees and applicants for employment without regard to race . . . and to base all employment decisions so as to further this principle of Equal Employment Opportunity. To this end, ALDI will not discriminate against any employee or applicant for employment because of race . . .