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United States District Court, Northern District of Illinois

September 2, 2003


The opinion of the court was delivered by: Joan Gottschall, District Judge


Plaintiff David Plump brought this action against his former employer, Kraft Foods North America, Inc. ("Kraft") claiming that he was terminated on the basis of his race and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. and 42 U.S.C. § 1981. As a preliminary matter, the court needs to clear up some confusion regarding how many counts are alleged by plaintiff. Kraft read the complaint as presenting three counts. After reviewing the complaint, the court concludes that the complaint sets forth only two counts. Paragraphs 7 through 30 set forth "factual allegations." Count I, which is erroneously labeled "Count II," sets forth plaintiff's Title VII claim. Count II, which is erroneously labeled "Count III," sets forth plaintiff's § 1981 claim. The court concludes that, based on argument made in his reply brief, plaintiff intended to bring a § 1981 claim based two alleged contracts — his status as an at-will employee, as well as the Kraft Employee Handbook ("Handbook") and/or Business Conduct Policy ("Policy"). To the extent count II is based on Plump's status as an at-will employee, Kraft does not challenge that count. However, Kraft does move to dismiss count II as it relates to Plump's allegations concerning Kraft's Handbook and Policy. For the reasons explained below, defendant's motion to dismiss Plump's § 1981 claim is granted as it relates to the Handbook and Policy. Page 2

On a Rule 12(b)(6) motion to dismiss, the court considers all allegations in the complaint to be true and draws all reasonable inferences in the plaintiff's favor. Jacobs v. City of Chicago, 215 F.3d 758, 765 (7th Cir. 2000). A complaint must include only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). To survive a motion to dismiss, a pleading need "only contain enough `to allow the court and the defendant to understand the gravamen of the plaintiff's complaint.'" McCormick v. City of Chicago, 230 F.3d 319, 323-24 (7th Cir. 2000) (quoting Payton v. Rush Presbyterian-St. Luke's Med. Ctr., 184 F.3d 623, 627 (7th Cir. 1999)). A court should dismiss a complaint only where it is clear that no relief could be granted consistent with the allegations. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984).

Section 1981 gives all persons within the jurisdiction of the United States the same right to make and enforce contracts as is enjoyed by white citizens. Partee v. Metropolitan Sch. Dist. of Washington Township, 954 F.2d 454, 456 (7th Cir. 1992). Under Illinois law, an employee handbook creates an enforceable contract if: (1) the language creates a promise clear enough that an employee would reasonably believe that an offer has been made; (2) the handbook is disseminated in such a way the employee is aware of its contents and reasonably believes it is an offer; and (3) the employee accepts the offer by commencing or continuing to work after learning of the handbook. Duldulao v. St. Mary of Nazereth Hosp. Ctr., 505 N.E.2d 314, 318 (1987).

Defendant argues that, to the extent plaintiff bases his § 1981 claim on violations of the Handbook and/or Policy, it must fail because plaintiff has failed to allege the existence of a valid contract. Relying on a copy of sections of the Handbook and Policy it attached to its motion to dismiss, defendant argues that the multiple disclaimers informing employees that the Handbook did not create any contractual obligations Page 3 defeat plaintiff's claim that either of these documents creates a contract. Further, defendant argues that plaintiff has pled himself out of court by conceding that he never received a copy of the Handbook and Policy.

While disclaimers in a handbook disavowing any contractual obligation typically defeat a § 1981 claim, Freeman v. Chicago Park District, 189 F.3d 613, 617 (7th Cir. 1999), the court cannot reach the question of whether the Handbook and/or Policy contained clear language of an offer by Kraft. Plaintiff did not attach these documents to his complaint, and he contends that the versions submitted by the defendant were not the ones in effect at the time of his discharge. In light of the dispute over the accuracy of the versions attached by Kraft, the court will not consider the copies provided. Federal courts, unlike Illinois state courts, do not require that critical documents be attached to the complaint. Mt. Hawley Ins. Co. v. Guardsmark, Inc., No. 01 C 5088, 2001 WL 766874, at *1 (N.D. Ill. July 5, 2001). Without copies of the actual documents, the court cannot review the language of the Handbook and/or Policy to determine whether or not either document contained clear language of an offer.

While the court cannot review the language of the Handbook and Policy, it can conclude that Plump has pled himself out of court with respect to the second element of the Duldulao test. In its memorandum in support of its motion, Kraft states that "During the relevant time period, Kraft maintained an Employee Handbook to which Plaintiff had access via an internal Kraft human resources website." (Def.'s Mem. at 2.) In response, Plump attempts to correct an "assumption" that Kraft makes in its memorandum, namely that "the Handbook and Business Policy documents referred to in the complaint were accessible to the plaintiff." (Pl.'s Resp. at 3.) Rather, Plump clarifies that "[Kraft's] memorandum alleges that these documents were available on the internet. They were not accessible to the plaintiff because they were on Page 4 a private system not available to the plaintiff and they were subject to "Legal and Copyright" accessible permit users."*fn1 (Id.) Given Plump's admission that he never had access to the Handbook and Policy, he cannot establish the second prong of the Duldulao test for the creation of an enforceable contract premised either on the Handbook or Policy. If the Handbook and Policy were not accessible to Plump, he could not have reasonably believed that they constituted an offer to contract.

For the reasons stated above, Kraft's motion to dismiss Plump's § 1981 claim is granted to the extent it is premised on the Employee Handbook and/or the Business Conduct Policy.

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