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September 23, 1999


The opinion of the court was delivered by: Aspen, Chief Judge.


Plaintiff, Dr. Marlene Stanford, filed a five-count complaint against her former employer, Kraft Foods, alleging violations of the Age Discrimination in Employment Act and Title VII and adding pendant state claims of tortious interference with contract, defamation per se, and breach of contract. Stanford brought the tortious interference and defamation claims against three individual employees of Kraft as well.

Stanford worked for Kraft — most recently in the company's Technology Division — from March 1986, until, presumably, March 5, 1998, when she received a "termination memorandum" from her immediate supervisor, defendant Debra Kaiser.*fn1 Stanford began working under Kaiser approximately one year before Stanford's departure from Kraft. According to Stanford, her problems began with the onset of Kaiser's supervision.

The thrust of Stanford's complaint is that the defendants conspired to get rid of her in order to hire and promote younger and male employees, a plan which they brought about by giving Stanford unfairly low and/or false performance reviews and probationary warnings, by reassigning her projects to younger employees, and by transferring her subordinates to other supervisors. Stanford additionally claims that many of the defendants' actions were not only discriminatory, but also violative of Kraft "policy and procedure" with regards to Stanford's employment.

Pursuant to Federal Rule of Civil Procedure 12(b)(6), the defendants have moved to dismiss the tortious interference and defamation claims, and Kraft has additionally moved to dismiss the breach of contract claim. For the reasons stated herein, we grant in part and deny in part the motion to dismiss.


We first address Stanford's claim for breach of contract because its disposition impacts her claim for tortious interference. The defendants argue that Stanford has failed to state a claim for breach of contract because she has not identified with specificity the contract on which her claim is based (and thus cannot state a claim for tortious interference with that contract), and because she has not "plead and prove(d) . . . the existence of an offer, acceptance, consideration, performance by the plaintiff, and breach by the defendant causing a loss." (Defs. Mem. at 2, citing Tibor Machine Products, Inc. v. Freudenberg-NOK General Partnership, 967 F. Supp. 1006, 1010 (N.D.Ill. 1997)). Second, defendants argue that to the extent Stanford has claimed breach of a written contract for severance pay, she has failed to allege the elimination of her job through no fault of her own, a condition precedent to her right to benefits under that contract.

Defendants' first argument confuses Illinois pleading requirements with those of the Federal Rules of Civil Procedure. Federal courts require that "a complaint include only `a short and plain statement of the claim showing that the pleader is entitled to relief,'" not detailed and specific facts as are required in Illinois state court. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), citing FED. R. CIV. P. 8(a)(2). Motions to dismiss under Rule 12(b)(6) are considered "merely to test the sufficiency of the complaint, not to decide the merits of the case." Triad Assocs., Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). To survive a motion to dismiss, Stanford "need only allege — rather than prove — the existence of a valid contract." Tibor, 967 F. Supp. at 1011.

Because Stanford's complaint states at least one claim for breach of contract, we do not need to consider the parties' other arguments regarding the validity of this count. However, we wish to clarify that Stanford's other contract claims are not viable. As defendants demonstrate, Stanford cannot maintain a breach of contract claim based on the severance contract she describes — which provides for severance payments if an employee's job is eliminated through no fault of his or her own — because Stanford alleges that Kraft sought a replacement for her after her discharge and then hired and promoted several younger scientists. Even accepting as true the existence of the severance contract and Kraft's failure to pay Stanford severance, her allegations regarding her discharge and replacement effectively "plead her out" of this claim;*fn2 she cannot maintain a claim for breach of the severance contract if, by her own admission, the contract's terms do not apply to her situation. See Early v. Bankers Life and Casualty Co., 959 F.2d 75, 79 (1992) (holding that a plaintiff can plead himself out of court by alleging facts that show he is not entitled to judgment).

Stanford also argues that her allegations that Kraft departed from its policies and procedures state a claim for breach of contract. In her response brief, she implies that these "policies and procedures" are akin to contractual promises made in some employee handbooks. However, in order for an employee handbook or other written policy statement to constitute a contract of employment, several elements must be present:

  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. Doe v. First Nat'l Bank of
  Chicago, 865 F.2d 864, 872 (7th Cir. 1989), citing
  Duldulao v. St. Mary of Nazareth Hosp. Center,
  115 Ill.2d 482, 106 Ill.Dec. 8, 505 N.E.2d 314, 318

Stanford neither identifies the source of the "policies and procedures" nor attaches them to her complaint; she provides only the most general contention that some of Kaiser's actions contradicted Kraft policy and procedure and were unprecedented. Even accepting as true Stanford's statements that Kaiser's actions violated Kraft policy and procedure, we cannot apply the Duldulao analysis since we have no copy of the policy to consider. See First National Bank of Chicago, 865 F.2d at 872-873 (affirming dismissal of breach of contract claim where plaintiff did not attach policy manual containing alleged contractual language to her complaint); see also Walton v. St. Anne's Hosp., No. 85 C 9393, 1987 WL 6871 (N.D.Ill. Feb.18, 1987) (dismissing breach of contract claim that was based on employer's unwritten policies).

Since we hold that Stanford has stated a viable claim for breach of contract, we turn to the question of whether she has adequately plead tortious interference with that contract. Stanford alleges that the individual defendants were aware of "legally enforceable contracts" between Stanford and Kraft, ...

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