Toombs v. City of Champaign

615 N.E.2d 50, 245 Ill. App. 3d 580, 185 Ill. Dec. 755, 1993 Ill. App. LEXIS 789
CourtAppellate Court of Illinois
DecidedJune 3, 1993
Docket4-92-1012
StatusPublished
Cited by98 cases

This text of 615 N.E.2d 50 (Toombs v. City of Champaign) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Toombs v. City of Champaign, 615 N.E.2d 50, 245 Ill. App. 3d 580, 185 Ill. Dec. 755, 1993 Ill. App. LEXIS 789 (Ill. Ct. App. 1993).

Opinion

PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiff, Jack B. Toombs, the former director of operations for the Champaign Department of Public Works (Department), sued defendant, the City of Champaign (City), for wrongful discharge. His complaint alleged that an employee manual granted him a right, pursuant to Duldulao v. St. Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314, to be fired only for certain specified reasons, and that the City did not fire him for any of those reasons. Defendant filed motions to dismiss under sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, pars. 2 — 615, 2 — 619). The trial court granted both motions, and plaintiff appeals.

We affirm.

I. Background

In October 1980, the City hired plaintiff as the superintendent of operations for the Department. In April 1987, the City changed plaintiff’s job title to “Director of Operations for the Department of Public Works,” but his responsibilities remained the same. He supervised all employees in the operations division of the Department. Among other duties, the Department repaired and maintained city streets, cared for trees along the streets and on city-owned property, provided emergency-repair services to public equipment, and provided snow and ice removal.

In January 1981 — four months after plaintiff started working for the City — the city council adopted an employee manual entitled “Personnel Policies for Non-Bargaining Unit Employees” (the manual). As explained in the manual’s statement of purpose, the City wanted to “standardize and formalize, for the benefit of the City and its employees, the benefits and conditions of employment for those employees of the City who are not represented by any of the City’s designated bargaining units.” The City thus published the manual “to recognize, by providing slightly different benefits in certain instances, the additional responsibility and differing characteristics of managerial employees.” The City issued the manual to all its non-bargaining-unit employees, which included plaintiff. In his complaint, plaintiff alleged that he had read and relied upon the manual and its contents.

In October 1990, plaintiff received a letter from Jim Carney, the public works director and plaintiff’s supervisor, stating that Carney recommended that the city manager fire plaintiff because of plaintiff’s failure to adequately supervise and discipline his employees. In November 1990, plaintiff received a letter from Steven Carter, the city manager, informing plaintiff that he was fired. In March 1991, plaintiff filed this lawsuit for wrongful discharge.

In June 1991, defendant filed a motion to dismiss under section 2 — 615 of the Code, claiming that the manual did not create a contract. Defendant also filed a motion to dismiss under section 2 — 619 of the Code. Defendant attached a city council ordinance, which amended the Champaign Municipal Code (Municipal Code) by revising and codifying the structure of the Champaign city government. Section 2 — 362 of the Municipal Code created plaintiff’s position, and section 2 — 363 stated that “[t]he Director of Operations shall be appointed by and serve at the pleasure of the City manager.” (City of Champaign, Ill., Municipal Code ch. 2, §§2 — 362, 2 — 363 (1987).) Defendant thus argued that this amendment to the Municipal Code modified any Duldulao contract that the 1981 manual might have created. Plaintiff responded by submitting an affidavit stating that “[d]uring the course of his employment with the defendant, plaintiff was never advised in any fashion, including orally or in writing, that the City *** had passed an amendment to the Champaign Municipal Code providing that his position *** would ‘be appointed by and serve at the pleasure of the City Manager.’ ”

In December 1992, the trial court granted the section 2 — 615 motion because the manual did not create a contract and granted the section 2 — 619 motion because the 1987 amendment negated any contractual right that might have existed under the 1981 manual. Plaintiff appeals both rulings.

II. Analysis

A. Standard of Review

When ruling on a motion to dismiss under either section 2 — 615 or section 2 — 619 of the Code, the trial court must interpret all pleadings and supporting documents in the light most favorable to the non-moving party. The court should grant the motion only if plaintiff can prove no set of facts that would support a cause of action. (Gouge v. Central Illinois Public Service Co. (1991), 144 Ill. 2d 535, 542, 582 N.E.2d 108, Ill.) Because this process does not require the court to weigh facts or determine credibility, appellate courts do not give a trial court’s judgment deference, but instead review the matter de novo. See Weil, Freiburg & Thomas v. Sara Lee Corp. (1991), 218 Ill. App. 3d 383, 389, 577 N.E.2d 1344,1349.

B. The Duldulao Contract

In Duldulao, the Illinois Supreme Court held that when an employer makes a clear policy statement to its employees in a written policy statement, an enforceable contract right may arise between the employer and its employees. (Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318.) The court set forth the following elements a plaintiff must prove to establish such a contract:

“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.” Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318.

The present case primarily focuses on the first element — the clear promise. Plaintiff claims that the manual listed the only reasons for which the City could fire him. Defendant responds, first, that the manual contains no such clear promise, and, alternatively, that it modified the manual to clarify that plaintiff worked at the whim of the city manager. We need not address this latter response because we agree with the City that the manual contains no “clear promise” as required by Duldulao.

The manual explained that the “types of termination” that could end an employee’s job “includes [sic]” resignation, dismissal, discharge, retirement, and death. (Emphasis added.) From this list, only discharge and dismissal apply, and the City does not dispute that it did not “discharge” plaintiff under the definition of that term in the manual. Regarding “dismissal,” the manual read as follows:

“Dismissal of an employee may result because of:
a.

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Bluebook (online)
615 N.E.2d 50, 245 Ill. App. 3d 580, 185 Ill. Dec. 755, 1993 Ill. App. LEXIS 789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toombs-v-city-of-champaign-illappct-1993.