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DOUGHERTY v. AKZO NOBEL SALT

April 30, 1999

PHILLIP K. DOUGHERTY, PLAINTIFF,
v.
AKZO NOBEL SALT INC., DEFENDANT.



The opinion of the court was delivered by: Castillo, District Judge.

MEMORANDUM OPINION AND ORDER

Phillip K. Dougherty filed this diversity lawsuit against Akzo Nobel Salt, Inc. ("Akzo") alleging claims for promissory estoppel and negligent misrepresentation. Akzo now moves for summary judgement under Federal Rule of Civil Procedure ("Rule") 56. For the reasons stated in this opinion, Akzo's motion is granted in its entirety and this action is dismissed with prejudice.

FACTS

Dougherty was employed as regional manager of Akzo's Grocery Group, a corporation that engages in substantial business in Chicago. In December 1996, Akzo executed an agreement whereby Cargill Incorporated ("Cargill") purchased Akzo. In April 1997, when the acquisition became final, Cargill interviewed former-Akzo employees for the purpose of determining who would be retained. On April 17, 1997, Cargill informed Dougherty that he would not be rehired. Dougherty alleges that his supervisor at Akzo, Art Armstrong, promised that his job would survive Cargill's acquisition of Akzo. Additionally, he claims he reasonably relied on Armstrong's assurances and that Armstrong either knew or should have known his job was at risk. We discuss the facts in greater detail below.

APPLICABLE STANDARDS

Summary judgment principles require a party seeking summary judgment to establish the lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This Court must view the facts in the light most favorable to the non-moving party, although it "is not required to draw unreasonable inferences from the evidence." St. Louis North Joint Venture v. P & L Enters., Inc., 116 F.3d 262, 265 n. 2 (7th Cir. 1997). As a practical matter, the inquiry is "whether the nonmovant has a fighting chance at trial." Shager v. Upjohn Co., 913 F.2d 398, 403 (7th Cir. 1990).

PROMISSORY ESTOPPEL CLAIM

In Count I of his complaint, Dougherty sues Akzo for promissory estoppel. The elements of a promissory estoppel claim in Illinois are well established:

  promissory estoppel requires proof of the following:
  (1) an unambiguous promise of employment communicated
  from the employer to the employee; (2) reasonable
  reliance on the promise of employment by the
  employee; (3) the reliance was expected and
  foreseeable by the employer; and (4) the reliance was
  to the employee's detriment.

Kalush v. Deluxe Corp., 171 F.3d 489, 490 (7th Cir. 1999) (quoting Quake Constr. v. American Airlines, 141 Ill.2d 281, 152 Ill. Dec. 308, 565 N.E.2d 990, 1004 (1990)); see also All-Tech Telecom, Inc. v. Amway Corp., 174 F.3d 862, 869 (7th Cir. 1999) ("Promissory estoppel is not a doctrine designed to give a party a second bite at the apple in the event it fails to prove a breach of contract.") (quoting Walker v. KFC Corp., 728 F.2d 1215, 1220 (9th Cir. 1984)). A promise is unambiguous if it is "clear enough that an employee would reasonably believe that an offer has been made." Duldulao v. Saint Mary of Nazareth Hosp. Ctr., 115 Ill.2d 482, 106 Ill.Dec. 8, 505 N.E.2d 314, 318 (1987); see also Tolmie v. United Parcel Serv. Inc., 930 F.2d 579, 581 (7th Cir. 1991). "This determination need not be made by a jury." Tolmie, 930 F.2d at 581.

At issue in this case is the reasonableness of Dougherty's belief that a promise was made, and whether he suffered any injury as a result of his reliance. Dougherty alleges Akzo made two promises. First, he claims that Armstrong, his supervisor, told him he did not qualify for an early retirement package because he was a critical employee (the "critical statement"). This promise occurred in November of 1996, approximately five months before the acquisition. Second, Dougherty alleges that on the evening before his Cargill interview, Armstrong relayed a message from Cargill's President: "[t]ell your men not to worry, the Grocery Group is coming over" (the "last supper statement").*fn1

Tolmie is instructive as to the "critical statement." In Tolmie, the plaintiff expressed concern to his supervisor about the loss of his "good cause" status if he accepted a promotion to management. 930 F.2d at 580. The supervisor "assured him that he would have nothing to worry about, insofar as job security was concerned, because `it is harder to fire management than other employees' of UPS." Id. at 580. Soon after the plaintiff accepted the promotion, UPS discharged him. Id. The court held that the supervisor's assurances did not qualify as an unambiguous promise because of the statement's "general nature" and its many possible interpretations. Id. at 581.

The first of the two Armstrong statements, the "critical statement," is too general to constitute an unambiguous promise. Dougherty asked a question about retirement plans and he received an answer that addressed his inquiry. Even drawing all permissible inferences in Dougherty's favor, the Court cannot interpret Armstrong's response as a definite promise of continued employment. Therefore, the "critical statement" cannot provide a basis for Dougherty's promissory estoppel claim.

We need not decide whether the "last supper statement" was an unambiguous promise because Dougherty cannot establish that he reasonably relied on that statement. Immediately after making the "last supper statement", Armstrong informed the Grocery Group members that he would deny making the statement if anyone tried to hold him to it. See Luciani v. Bestor, 106 Ill. App.3d 878, 62 Ill.Dec. 501, 436 N.E.2d 251, 256 (1982) (holding circumstances surrounding the transaction and the parties' prior business experience determine justifiable reliance); see also Teamsters Local 282 Pension Trust Fund ...


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