The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
After being terminated, Plaintiff James Fragakis ("Plaintiff") filed an eight-count Complaint against his former employer, the Illinois State Toll Highway Authority, and its Chief Administrator, Brian McPartlin (collectively "Defendants"). The Complaint alleges denial of administrative review (Count I); seeks a writ of certiorari (Count II) and declaratory judgment or injunctive relief (Count III); and alleges tortious interference with contract (Count IV), breach of employment contract (Counts V), breach of contract related to back wages (Count VI), due process violations (Count VII), and retaliatory discharge (Count VIII). Before this Court is Defendants' motion to dismiss all eight counts for failure to state a claim and time bar.
For the reasons set forth below, Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART. Defendants' motion is GRANTED with respect to Counts I-V and Count VII. Defendants' motion to dismiss Count VI (breach of contract -- back wages) is DENIED. Defendants' motion to dismiss Count VIII (retaliatory discharge) is GRANTED as against Defendant McPartlin but DENIED as against the Defendant Illinois State Toll Highway Authority.
The Illinois State Toll Highway Authority ("the Tollway") is a state statutorily-created agency charged with the administration and maintenance of the toll roads in Illinois. Plaintiff began working for thee Tollway in DuPage County, Illinois on November 6, 1978. Though hired as a union employee, he was eventually promoted to a supervisory position. On or about March 11, 1997, Plaintiff was promoted to Building Maintenance Manager in the Toll Services Department. His principal duties were to manage the Tollway's essential operating systems, including its heating, air-conditioning, electrical, plumbing, and mechanical door systems. Plaintiff reported to Robert Smith, Facility Services Manager, who reported to Paul Volpe, Department Chief of Toll Services, who in turn reported either directly or indirectly to Defendant McPartlin. During Plaintiff's career, no disciplinary procedures were ever initiated against him.
Plaintiff received written notification of his termination in a letter dated September 30, 2003 and hand delivered by McPartlin and a colleague. The letter informed Plaintiff that his position was being eliminated due to efforts to reform and rebuild the Tollway. Plaintiff had no warning that he would be terminated.
The purpose of a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is to test the sufficiency of the complaint, not to decide the mertis of the cae. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990)(citation omitted). On a 12(b)(6) motion, the Court accepts all well-pleaded allegations in the plaintiff's complaint as true, Fed. R. Civ. P. (12)(b)(6), and views the allegations in the light most favorable to the plaintiff. Bontkowski v. First National Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993). The Court should not dismiss a complaint "unless it appears beyone all doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.s. 41, 45-46 (1957).
A. Plaintiff's Contract Claims
Defendants move to dismiss Plaintiff's claim for breach of contract on the ground that Plaintiff is an "at-will" employee who cannot state a claim for breach of an employment contract. Plaintiff argues that the Tollway's Personnel Policy and Procedures Manual ("Manual"), distributed to all employees, creates an enforceable contract between himself and the Tollway.*fn2
Illinois law presumes that an employment relationship without a fixed term is terminable at will by either party. See Duldulao v. Saint Mary of Nazareth Hospital Center, 505 N.E.2d 314, 317-18 (Ill. 1987). This presumption is overcome only when the parties have contracted otherwise. Id. An employee handbook, however, can create enforceable contractual rights if the "traditional requirements for contract formation are present." Id. at 318. An employee handbook or policy statement creates a valid contract when: (1) The policy statement's language contains a "promise clear enough" that an employee would reasonably believe an offer has been made; (2) the policy statement is disseminated to the employee in a manner causing the employee know its contents and reasonably believe it to be an offer; and (3) the employee accepts the offer by commencing or continuing to work after learning of the policy statement.
Plaintiff argues that the revised version of the Manual issued on March 1, 1997 contains the "promise clear enough" required under Illinois law. According to Plaintiff, the Manual promised that Defendants would use a policy of progressive discipline before terminating him. Indeed, under Duldulao, a employee handbook containing a clear statement that an employee can only be discharged pursuant to a progressive disciplinary policy can ...