Dunlop v. Colgan, 687 F. Supp. 406, 409-10 (N.D. Ill. 1988) (recognizing that Braught carved "a narrow exception into the rule governing faculty hiring: The power to appoint teachers rests not only with a school board, but also with the board's authorized agents."). In light of this case law, we find Kastel's allegations sufficient to withstand the defendants' motion to dismiss.
Kastel further alleges that she accepted the offer of re-employment made to her, and that she provided consideration for the contract through partial performance. According to her complaint, Kastel performed services in the spring of 1995 in anticipation of her continued part-time employment in the fall of 1995. She alleges that this organization and planning was beyond the scope of her full-time contract, and that these activities were performed as an initial undertaking of her duties which were to exist under her part-time employment, expected to commence in fall, 1995.
The defendants assert that at the time Kastel claimed she was partially performing her part-time contract, she was still obligated to perform under her full-time contract. They note that Illinois law prohibits the co-existence of an implied or oral contract with an express contract concerning the same subject matter. The defendants therefore contend that the actions taken by Kastel were merely performance of her express, full-time contract, and therefore cannot be regarded as consideration for the alleged part-time contract.
In support of this argument, defendants cite Zadrozny v. City Colleges of Chicago, 220 Ill. App. 3d 290, 581 N.E.2d 44, 163 Ill. Dec. 93 (1st Dist. 1991). There, the plaintiff, a teacher, was asked by a college official for information regarding a course he taught in response to a student's complaint. Zadrozny, 581 N.E.2d at 46. Plaintiff claimed that this request created an implied contract to compensate him for the time and effort exerted in complying with the official's request. 581 N.E.2d at 48. The court rejected this argument, holding that an implied contract cannot co-exist with an express contract on the same subject. Id. Since the plaintiff's express contract required him to assist officials in all activities necessary to bring the semester to a close, providing the requested materials could not have been the subject of a separate implied contract. Id.
In this case, however, Kastel has alleged that her acts of partial performance were acts above and beyond the scope of her full-time contract. She has alleged that she performed hundreds of hours of work for which she was not compensated under her full-time contract. For the purposes of ruling on this motion, we are obligated to take all facts asserted in the complaint as true. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996). Kastel has alleged that the actions she claims were partial performance of the alleged part-time contract were not obligations under her full-time contract, and thus the scope of the two contracts did not overlap. Because Kastel has alleged all other elements of a contract action, she has stated a valid claim for breach of contract under Illinois law.
Finally, the defendants argue that Kastel's letter of resignation, attached to the Amended Complaint as Exhibit B, indicates that as of August 1, 1995, Kastel had not received the offer of employment she describes. Their argument is based on the fact that the letter purports to be the initial notification to the Superintendent of Kastel's intent to retire, and reiterates her request to continue her employment on a part-time basis.
There is no question but that this letter creates confusion on the issue of when the alleged contract was formed. Nevertheless, the defendants attempt to prove too much from this letter. Assuming that Kastel had not yet formally notified the Superintendent of her intent to retire, that does not necessarily mean that she had not discussed it informally with the Superintendent, or with other school officials who she claims promised her a part-time position. Also, it is plausible to read Kastel's reiteration of her request to continue part-time as an affirmation of her acceptance of the offer to employ her on a part-time basis. While this is perhaps not the first impression one might form upon reading the letter, it is not an improper or unwarranted interpretation. Because Kastel's August 1, 1995 letter is subject to more than one interpretation, at least one of which is consistent with Kastel's contract claim, it does not foreclose that claim.
This Court also notes that, in the event Kastel ultimately is unable to prove the elements of a breach of contract claim at trial, the facts alleged may support a claim for promissory estoppel. To state a promissory estoppel claim under Illinois law, the plaintiff must establish that he or she reasonably and justifiably relied, to his or her detriment, on an unambiguous promise, and that such reliance was foreseeable by the promisor. M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1408 (7th Cir. 1991). A promissory estoppel claim may be raised to enforce promises which do not meet the requirement of consideration. Prentice v. UDC Advisory Servs., Inc., 271 Ill. App. 3d 505, 512, 648 N.E.2d 146, 151, 207 Ill. Dec. 690 (1st Dist. 1995).
Here, Kastel alleges reasonable reliance on her Principal's and Superintendent's promises to rehire her. This Court, for the limited purposes of this motion, finds that nothing in the complaint suggests that this reliance was unreasonable or unjustified, particularly as Kastel has alleged that offers of employment by principals or the Superintendent are the equivalent of offers from the Board. Nor is the alleged promise of re-employment ambiguous on its face.
Kastel has alleged a detrimental action, namely her decision to retire from full-time teaching, taken in reliance upon the promise to rehire her. It appears from a fair reading of the complaint that she would not have given up her full-time employment but for her belief that she would be rehired. The foreseeability of Kastel's reliance on this promise is supported by her allegation that it was the common practice within the district that offers by principals and the Superintendent were treated as offers from the Board. Because Kastel has alleged facts sufficient to support a claim for breach of contract, or in the alternative for promissory estoppel, the motion to dismiss is denied with respect to Count VI.
V. Article 13, Section 5 of the Illinois Constitution: Pension Rights
In Count VII, Kastel claims that by making her future employment conditional upon her forgoing her early retirement pension rights, Superintendent van der Bogert and Board President Ogata interfered with her pension rights in violation of article 13, § 5 of the Illinois Constitution.
Kastel's claim is based on the Illinois Constitution provision that reads:
Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.
ILL. CONST., art. 13, § 5 (1996).
This provision is modeled on a similar provision of the New York Constitution. Kraus v. Board of Trustees, 72 Ill. App. 3d 833, 845, 390 N.E.2d 1281, 1290, 28 Ill. Dec. 691 (1st Dist. 1979). The purpose of the provision is essentially to lock in an employee's pension rights as they are stated under the employment contract, or as they exist by statute. Loren Oury, Comment, Public Employee Pension Rights and The 1970 Illinois Constitution: Does Article XIII, Section 5 Guarantee Increased Protection?, 9 J. MARSHALL J. OF PRAC. & PROC. 440, 451 (1976) (citing IV RECORD OF PROCEEDINGS, SIXTH ILL. CONSTITUTIONAL CONVENTION, Verbatim Transcripts 2931 (1969-1970)). The provision was necessary because, prior to its adoption, Illinois courts treated the majority of pension plans as gratuitous. Id. at 441. Therefore, members in state-supported pension funds were fearful that the legislature might modify, diminish or abandon the pension plans. The constitutional provision was adopted to secure the status of the pension plans as they existed when the employees agreed to an employment contract, and to protect the plans against legislative abrogation. Id. at 457. The provision was not intended to create or protect "naked pension rights qua rights." Poggi v. City of New York, 109 A.D.2d 265, 491 N.Y.S.2d 331, 335 (N.Y. App. Div. 1985) (commenting on the similar provision in the New York constitution), aff'd, 67 N.Y.2d 794, 492 N.E.2d 397, 501 N.Y.S.2d 324 (N.Y. 1986).
In this case, the constitutional provision relied upon by Kastel does not address the wrongs she alleges. All the case law on this provision demonstrates that its function is to protect pension plans from being modified or abandoned after they have served as an inducement to enter a contract. See, e.g., Peters v. City of Springfield, 57 Ill. 2d 142, 151-52, 311 N.E.2d 107, 112 (1974); Ziebell v. Board of Trustees, 73 Ill. App. 3d 894, 900, 392 N.E.2d 101, 105-06, 29 Ill. Dec. 544 (1st. Dist. 1979). Here, Kastel is claiming pension rights above and beyond what the plan specifically provides--i.e., the right not to have future employment made conditional on her surrender of her early retirement pension rights. While her claim evokes sympathy, we can find no cases suggesting that such a claim would be protected by article 13, section 5 of the Illinois Constitution. We are reluctant to carve out new rights under the Illinois Constitution where the state courts have not done so. Because Kastel has failed to state a cognizable claim based on article 13, section 5 of the Illinois Constitution, the motion to dismiss is granted with respect to Count VII.
VI. Article 1, Section 2 of the Illinois Constitution: Equal Protection/Retaliation.
In her last remaining count, directed towards Superintendent van der Bogert and Board President Ogata, Kastel alleges that the defendants retaliated against her for choosing to exercise her pension rights by refusing to rehire her, and that this refusal discriminated against her in violation of the equal protection clause of the Illinois Constitution. ILL. CONST., art. 1, § 2. Kastel alleges that she, as a member of the class of persons who elected early retirement, was denied the right to equal protection of the laws in that her applications for employment and those of other early retirees were not considered by the defendants. The defendants contend that the early retirement statute does not prohibit retaliation, and also claim that Kastel has cited no authority that such a cause of action even exists.
We note at the outset of our analysis that equal protection challenges based on the Illinois Constitution are evaluated under the same standards as the United States Constitution. Nevitt v. Langerfelden, 157 Ill. 2d 116, 124, 623 N.E.2d 281, 284, 191 Ill. Dec. 36 (1993). In order to state a claim under the equal protection clause, the plaintiff therefore must allege (1) membership in a specific class, and (2) that membership in this class was the basis for disparate treatment. McNabola v. Chicago Transit Auth., 10 F.3d 501, 513 (7th Cir. 1993).
In this case, Kastel claims to be a member of the class of those teachers who elected early retirement. She also alleges that she and other members of this class were intentionally treated less favorably than others in that their applications for part-time employment were not considered simply on the basis of their election to take early retirement. While recognizing that Kastel faces an uphill battle to establish at trial that defendants lacked a rational basis for this treatment, we hold for the purposes of deciding this motion to dismiss that she has alleged facts sufficient to support a claim under the Illinois equal protection clause.
Defendants' argument that the early retirement statute does not explicitly prohibit retaliation fails to address Kastel's claim. Her claim is not based on the early retirement statute, but on the Illinois equal protection clause. As with its federal counterpart, "this clause is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985). Kastel claims that she was not treated as favorably as other applicants because of her membership in the class of early retirees. Defendants' argument about the lack of a prohibition against retaliation in the statute creating this particular early retirement plan does nothing to weaken her claim.
Finally, we reject defendants' argument that the motion should be granted because Kastel has presented no evidence that such a cause of action exists. Although this Court has found cases which hold that no right to be free from retaliation exists under the equal protection clause, those cases all involved retaliation for filing claims of discrimination with the EEOC. See Gray v. Lacke, 885 F.2d 399, 414 (7th Cir. 1989); Yatvin v. Madison Metro. Sch. Dist., 840 F.2d 412, 418-19 (7th Cir. 1988). In those cases, courts state that plaintiffs must use Title VII or the First Amendment as the basis for their causes of action. Here, however, the fact that Kastel chose the word "retaliation" to describe her cause of action does not necessarily make it analogous to those cases. It is clear from a reading of the complaint that Count IX is not a classic employment retaliation claim, and in fact may not involve "retaliation" in its usual sense at all. Rather, Count IX alleges that Kastel belongs to a class of people, early retirees, and that based on her membership in this class she was denied a benefit and opportunity which was extended to persons not members of this class. This is the classic formulation of a claim under the equal protection clause. The Court accordingly denies the motion to dismiss with respect to Count IX.
For the foregoing reasons, the defendants' motion to dismiss is granted as to Count VII only, and denied as to all other counts. Count VII is hereby dismissed with prejudice.
Lastly, this Court must note that it is unfortunate that both parties have used their limited resources, as well as the Court's, in unleashing a volley of weak claims and unsuccessful counter-arguments, all in an attempt to determine the appropriate parameters of a complaint that contains many overlapping theories of recovery. While the Federal Rules of Civil Procedure allow such pleading practices, this Court agrees with Chief Judge Posner of the Seventh Circuit Court of Appeals, who recently deplored "the mindless proliferation of legal theories by trial lawyers." Vidimos, Inc. v. Laser Lab Ltd., 99 F.3d 217, 1996 U.S. App. LEXIS 27628, *16, No. 95-3676 (7th Cir. Oct. 24, 1996). Similarly, this Court notes that the defendants' attempt to raise summary judgment arguments in their motion to dismiss is inappropriate and premature, and that the many flawed arguments with which they barraged the Court were ultimately wasteful of everyone's limited resources. The Court urges both parties to adopt a more considered approach to both pleading and motion practice in the future.
United States District Judge
October 31, 1996