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TALANDA v. KFC NATL. MGMT. CO.

August 25, 1994

PAUL TALANDA, Plaintiff,
v.
KFC NATIONAL MANAGEMENT COMPANY, a Delaware Corporation d/b/a KFC a/k/a Kentucky Fried Chicken, a subsidiary of KFC CORPORATION, a Delaware corporation and a subsidiary of PEPSICO, INC., A North Carolina corporation, Defendant.


NORDBERG


The opinion of the court was delivered by: JOHN A. NORDBERG

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).

 ALLEGED FACTS

 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. *fn1"

 ANALYSIS

 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. *fn2" (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 ...

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