Geva v. Leo Burnett Co., Inc.

• Decision Date: 31 May 1991
• Docket Number: No. 90-1418,90-1418
• Citation: 931 F.2d 1220
• Parties: 119 Lab.Cas. P 56,716 Ilan GEVA, Plaintiff-Appellant, v. LEO BURNETT COMPANY, INCORPORATED, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1220

931 F.2d 1220

119 Lab.Cas. P 56,716

Ilan GEVA, Plaintiff-Appellant, v. LEO BURNETT COMPANY, INCORPORATED, Defendant-Appellee.

No. 90-1418.

United States Court of Appeals Seventh Circuit.

Argued Nov. 9, 1990.

Decided May 10, 1991.

Rehearing and Rehearing En Banc

Denied May 31, 1991.

John M. Bowlus, Joyce & Kubasiak, Chicago, Ill., for plaintiff-appellant.

Gerald D. Skoning, Laura R. Garger, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for defendant-appellee.

Before BAUER, Chief Judge, and CUDAHY and EASTERBROOK, Circuit Judges.

CUDAHY, Circuit Judge.

Leo Burnett Company needed a creative designer to fill a position in one of its specialized advertising groups. In November 1987, it found Ilan Geva, an Israeli citizen working in the United States as a nonresident alien. Geva moved to Chicago from Los Angeles in April 1988 to begin work for Leo Burnett. When the company terminated him abruptly the following August, Geva brought this suit for damages. The district court granted Leo Burnett's motion for summary judgment, and we affirm.

I.

Our standard of review in cases decided on summary judgment is de novo, and we resolve any reasonably disputed factual questions in favor of the non-moving party. Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir.1990). Ilan Geva was living in Los Angeles and working at the local office of Ogilvy & Mather when Leo Burnett contacted him in the fall of 1987. The Chicago advertising firm was searching for someone to serve as senior art director for its Direct Response Group. Leo Burnett twice flew Geva to Chicago to discuss the position, describing Geva's compensation and scope of duties during those talks but never mentioning a specific duration of employment.

Once convinced that Geva was right for the job, Leo Burnett still had to worry about its prospective employee's immigration status. When contacted by Leo Burnett, Geva possessed an L visa for intra-company transfers, having worked for Ogilvy & Mather in South Africa before transferring to its Los Angeles office. ¹ He had applied for permanent resident status, but had not yet received his green card. Leo Burnett engaged a Chicago law firm to assist Geva in changing his immigration status. Because an L visa would not allow Geva to work for Leo Burnett, he decided after consultation to drop his application for permanent resident status and to seek instead an H-1 nonimmigrant visa. ² On February 22, 1988, in assisting in Geva's H-1 visa application, Leo Burnett submitted a petition to the Immigration and Naturalization Service (INS) describing both Geva's qualifications and the firm's exceptional needs. The petition summarized the terms of Geva's employment, including not only his salary and benefits but the duration of his employment--anticipated to be three years. In preparing this petition, Leo Burnett's lawyers contacted Geva for certain background information, but the plaintiff did not learn of the report's content, including its assessment of duration, until his H-1 visa was granted in late March.

Geva received a formal offer of employment from Leo Burnett after acquiring his new nonimmigrant visa. He reported for work on April 14, 1988. As was the custom at Leo Burnett, Geva was handed a number of forms to sign on his first day, one of which included the following waiver:

PLEASE READ AND SIGN.... I agree to conform to the rules and regulations of Leo Burnett Company, Inc., and my employment and compensation can be terminated, with or without cause, and with or without notice, at any time, at the option of either the Company or myself. I understand that no Leo Burnett Company employee has authority to enter or offer an agreement for employment for any specified period of time or to make any agreement contrary to this policy.

Geva signed this waiver. On the same day, he inquired whether Leo Burnett would provide his employment terms in writing, but the request was denied. Along with the assorted forms, Geva received the company's employee handbook. Geva worked for Leo Burnett for approximately four months before he was terminated.

Invoking diversity jurisdiction, the plaintiff filed this suit in federal court for the wages he lost over three years as a result of his alleged wrongful termination. He argued two distinct theories of liability. First, Geva asserted that, in terminating him prior to three years employment, Leo Burnett violated the party's employment agreement. Second, he claimed that the employee handbook guaranteed him rights that were ignored in his termination.

II.

In Illinois, workers without an enforceable contract that either states a duration for employment or permits termination of employment by an employer only under specified circumstances are considered employees at will. Mann v. Ben Tire Distribs., Ltd., 89 Ill.App.3d 695, 697, 44 Ill.Dec. 869, 870, 411 N.E.2d 1235, 1236 (1980). Geva has not argued, either below or on appeal, that he possessed a written agreement for three years of employment with Leo Burnett. Though he asked to have his terms of employment set out in writing, the company refused and he began work nonetheless. When Geva pressed his claim to a three-year period of employment in the district court, Leo Burnett defended on the basis of the statute of frauds, which requires a written contract for any agreement that cannot be performed within a year. Ill.Rev.Stat. ch. 59, p 1 (1989). To this defense Geva responds that, in quitting his job and moving to Chicago from Los Angeles, he detrimentally relied on the promise of three years' employment. Due to this reliance, Geva asserts that Leo Burnett should be estopped from asserting the statute of frauds. His rejoinder thus invokes principles of promissory or equitable estoppel. ³

Illinois' doctrine of promissory estoppel traces closely the position adopted by the Restatement:

The elements of promissory estoppel are: a promise unambiguous in terms, with reliance thereon by the promisee, with such reliance being expected and foreseeable by the promisor, and with the promisee in fact relying on the promise to his injury.... [I]n order to invoke the doctrine, the promisee's reliance must be reasonable and justifiable.

Vincent Di Vito, Inc. v. Vollmar Clay Products Co., 179 Ill.App.3d 325, 327-28, 128 Ill.Dec. 393, 395, 534 N.E.2d 575, 577 (1989) (citations omitted); see Restatement (Second) of Contracts Sec. 90(1) (1981); see also Bank of Marion v. Robert "Chick" Fritz, Inc., 57 Ill.2d 120, 311 N.E.2d 138 (1974) (adopting first Restatement's position on promissory estoppel).

Promissory estoppel can be invoked in a contract setting as well as in a noncontract setting. If one party offers something to another party, without requiring consideration in return, the gratuitous promise might nevertheless prove enforceable if the promisee acts to her detriment in reasonable reliance on the promise. See, e.g., Restatement (Second) of Contracts Sec. 90 comment a, illustration 1 (1981); Bank of Marion, 57 Ill.2d at 124-25, 311 N.E.2d at 140. But promissory estoppel can also arise in the contract setting when consideration is present--for example when the alleged agreement does not exist in writing but one party has already acted in reliance on that agreement. Gold v. Dubish, 193 Ill.App.3d 339, 140 Ill.Dec. 9, 549 N.E.2d 660 (1989).

Geva attempts to invoke promissory estoppel in the context of an alleged contract. He insists promissory estoppel should allow the enforcement of the bilateral promises exchanged by the parties to this litigation: promises to employ and be employed for at least three years. The trial judge was correct in finding for the defendant on summary judgment, based on Geva's failure to present evidence of a promise on which he could reasonably rely.

Geva cannot win on his claim that an enforceable oral contract was formed by the two parties governing the duration of the employment relationship. Because Geva presented no writings evidencing the contract, the defendant justifiably asserted the statute of frauds as a defense to the alleged three-year contract. Geva's only response is that the defendant is estopped from pleading the statute of frauds because of its promise. Nevertheless, to invoke promissory estoppel Geva must still show at a minimum the existence of a promise on which he might reasonably have relied. He has neither alleged nor suggested proof of such a promise.

In the course of this litigation, Geva has not, it appears, averred that anyone employed by Leo Burnett ever discussed employment duration with him. In fact, the only source of a three year term to which Geva points is the paragraph in Leo Burnett's letter to the INS. ⁴ A written memorandum signed by the defendant can be used by the plaintiff to avoid a statute of frauds defense. ⁵ But Geva did not present such an argument, in all likelihood because there were no agreements on which to base an oral contract claim. Standing alone, Leo Burnett's petition to the INS representing its intention to employ Geva for three years does not constitute a promise on which Geva could reasonably rely. Restatement (Second) of Contracts Sec. 2(1) (1981) ("A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made."). Cf. Williams v. Superior Court of San Diego County, 216 Cal.App.3d 378, 264 Cal.Rptr. 677 (1989) (in action for oral contract, trial court did not abuse discretion in disregarding employer's representation to INS of three year expected employment of plaintiff). Leo Burnett made its statement to the INS to procure a visa for a prospective employee who had already quit his prior job, with no intention that Geva rely upon the representation. Geva simply has not alleged or presented sufficient facts to justify submitting his promissory estoppel theory to the trier of fact.

By deciding the promissory...