Donald Wagner v. State of Illinois

ORDER

JANN, J. THIS MATTER coming to be heard on the Motion of Respondent to Dismiss the claim herein and Claimant’s Response in Opposition, and the Court being fully advised in the premises finds that:

Claimant, Donald Wagner, has filed a breach of contract action against Respondent, Illinois Department of Transportation (“IDOT”) pursuant to 705 ILCS 505/8(b) in the amount of $70,000.00 alleged as damages resulting from the breach of an employment contract allegedly arising from language in Respondent’s CMS form to be filed by certain State employees seeking promotion. Claimant asserts he was “involuntarily transferred to a trainee position” contrary to “written policy” of Respondent in language found in a Promotional Employment Application which is a Department of Central Management Services (CMS) form. The form is to be submitted only by existing State employees under the jurisdiction of the Illinois Personnel Code.

Claimant submits an enforceable contract arose when he was “promoted to a trainee position” in violation of the “written policy” in the form Application for promotion in 2001. Respondent has filed this motion seeking dismissal on the grounds of failure to state a cause of action for breach of contract and lack of subject matter jurisdiction over the alleged breach due to the statutory jurisdiction of the Civil Service Commission and review in the circuit courts per the Administrative Review Act as cited by Respondent in this motion.

While numerous issues have been raised by the parties in the Complaint and pleadings on this motion, the crux of this claim is whether the Promotional Employment Application (“Application”), constitutes a valid contract between Claimant and Respondent, vesting Claimant with contract rights necessary to bring an action for breach of contract on the facts pleaded, and whether such a contract is within this court’s jurisdiction.

I. COMPLAINT ALLEGATIONS.

Claimant alleges that in 1987 he was hired by IDOT as a Highway Maintainer. Claimant alleges that he was on probation as a “new hire” for six months, after which time he was promoted out of a trainee title into a Highway Maintainer position. Wagner worked as a Highway Maintainer until June, 1999 when he applied for, and was transferred into a position of a Bridge Tender.

Claimant alleges that he worked as Bridge Tender on a bridge that was slated for closing. He was employed in that position about two years, after nearly 12 years [*250] as a Highway Maintainer. (Complaint @ para. 5). These facts are not disputed by the parties.

Claimant’s Complaint states a number of allegations which contain no specific facts or references to the parties alleged to have acted, or reference to a contract or other writing which the Court might infer have relevance to this action in paragraphs 7, 9, 11, 12, 13, & 14 of his Complaint. We have no idea why Claimant might have an employment contract right in the date a bridge was closed, or what a purported “development being promoted near his property” might have to do with his employment as an IDOT worker. We are similarly uninformed as to the relevance of the word “promotion” as a misnomer has to do with an Application he failed to plead he had submitted.

Claimant’s Complaint alleges that the following constitute contractual violations:

a. IDOT’s written policy that employees “may not be promoted into trainee titles” forms a basis of a contractual agreement between Claimant and IDOT; b. “in consideration of Wagner’s continued employment”, Claimant accepted the term of the contract that provided that he would not be promoted into a trainee title; c. a year before the transfer, IDOT “decided to transfer Claimant” into a trainee position; d. the transfer of Wagner constitutes a breach of employment contract between Claimant and IDOT/CMS, Respondent.

Clearly, Claimant need not prove his case on a 5-2/619 motion to dismiss. However, he is obliged to plead sufficient facts to state a cause of action, or, seek leave to amend his pleadings, respond to issues raised by a motion which are not evident in his Complaint, and make denials of disputed facts or proofs of the moving party when claiming the existence of genuine issues of material fact. It is prudent to make an offer of proof when one disputes the evidence in a Departmental Report supporting Respondent’s motion.

Claimant has made no motion to amend or offer of proof. He has alluded to genuine issues of fact which are not specified. We infer he refers to the “promotion to a trainee position”. It appears to be the logical issue Claimant deems most important, but is irrelevant unless the Application creates a valid contract right owed by Respondent within our jurisdiction.

[*251] It is also noted that Claimant did not plead he had filed the Application at issue, or in any way relied upon it to his detriment. He alleges that written policy in the Application is the basis of a breach of an unspecified employment contract, and that Respondent violated this purported contract when he was “involuntarily transferred”. It is obvious that Claimant indulged in literary license in framing his allegations. We need not reach the fact issues and credibility of the allegations other than the agreed fact that Claimant was an IDOT employee and relies upon a form Application for his claim. He has pursued three unsuccessful claims on substantially similar allegations and the same subject matter in other forums.

II. RESPONDENT’S DEPARTMENAL RECORDS.

On February 16, 2006, Respondent filed its Departmental Report. In addition, Respondent has filed two Supplements to its Departmental Report with notice to Claimant. Pursuant to Court of Claims Regulations 74 Ill. Adm. Code 790.140, a departmental report is prima facie evidence of the facts set forth therein.

Claimant has not made any objection to the authenticity or veracity of the personnel records, copies of his prior civil complaints, or administrative proceedings relevant to this motion contained in the Departmental Reports, in his Response or in any pleading.

Respondent’s Supplements to its Department Report include the following documents:

• A waiver dated August 16, 2001 and signed by IDOT, the Teamsters Local Union 722 and the Illinois Conference of Teamsters. The Waiver authorized the promotion of Claimant to the position of Highway Maintainer (Bridge Crew), without the usual requirement that the position be posted. Also, it is indicated that this promotion would be in lieu of layoffs due to closure of the bridge at LaSalle, Illinois.

• Claimant’s Promotional Employment Application dated August 22, 2001 for the position of Highway Maintainer. Claimant provides as a reason for leaving his prior position within IDOT the fact that the bridge that he had worked on had closed in the application.

• An Illinois Department of Central Management Services Personnel/Position Action Form signed by Claimant on November [*252] 5, 2001, which indicates that he approved of the promotion offered as a Highway Maintainer.

• Clearer copies of pages 56 and 57 of the Downstate Teamsters Bargaining Agreement, part of Respondent’s Departmental Report filed February 16, 2006. The documents indicate that the pay rate for July 1, 2001 through June 30, 2002 of a “new hire” Highway Maintainer (Bridge Crew) was $3,088.48 per month, and the final pay rate would be greater than his prior pay as a Bridge Tender.

• A “4A Resolution Signoff sheet” which denied Claimant’s grievance on substantially the same issues and arising from the same facts, at the fourth level and accord by IDOT and Claimant’s union on all charges denied. This is a proof of the administrative remedy Claimant sought for alleged violations of designation as a “new hire”, a probation period in the new position, lesser salary than his prior position, and purported loss of seniority.

• Affidavit of Colleen Alderman, IDOT Labor Relations manager since June, 1999 who avers knowledge of the matters at issue and authority to act on resolution of disputes with union employees and IDOT. The affidavit avers to Claimant’s personnel records as an IDOT employee, his representation by the Downstate Teamster’s union at all times during his employment at IDOT, and copies of the relevant collective bargaining agreements, Illinois Personnel Code and CMS documentation referenced in Respondent’s motion to dismiss and Departmental Reports.

The affidavit recites a summary of Claimant’s employment with Respondent, his membership in a labor union which has exclusive bargaining authority for the subject positions, and avers that no trainee position for highway maintainer, bridge crew, exists, nor did such a position exist, prior to Claimant’s acceptance of his present bridge crew position.

The record strongly infers that the Claimant was not happy with the agreements made by his union to preserve jobs for members to be laid off when the old bridge near LaSalle-Peru/Oglesby, Illinois closed. A new bridge was built to accommodate significant river traffic and increased vehicular traffic on the span across the Illinois river pursuant to a major IDOT road/bridge building project which was well known to LaSalle county residents years prior to Claimant’s first application for promotion to a bridge tender position at Shippingsport bridge. Claimant’s own written statements evidence his knowledge of the short duration of his new job was imminent as Claimant has pleaded in his Complaint. The new bridge was designed to allow safe and easy [*253] navigation by barges, cargo vessels, commercial shipping craft, and pleasure vessels to pass beneath the engineered span without need of mechanical lift or disruption of vehicular traffic on the road above. Hence, no bridge tender jobs were to remain at the same spot. This information was widely dispersed in the local media, and is a matter of public record which the court duly notes in considering Claimant’s proposition of reliance or implied contract as pleaded in his Complaint, and as argued in opposition to the motion to dismiss we consider.

III. FAILURE TO PLEAD A CONTRACT

CLAIM/BREACH

In order to plead a cause of action for breach of contract, Claimant must allege:1) the existence of a valid and enforceable contract; 2) substantial performance by Claimant; 3) a breach by Respondent; and 4) resultant damages.

Only a duty imposed by the terms of a contract can give rise to a breach.

W.W.Vincent and Company, et al. v. First Colony Life Insurance Co., 351 Ill.

App. 3d 752, 759, 814 N.E.2d 960, 967 (1st Dist. 2004).

Claimant has alleged the Application is the discrete and explicit document giving rise to his breach of contract claim. He has stated that his rights under the Personnel Code, CMS Rules, and administrative proceedings concerning representation by a labor union under collective bargaining agreements are not the source of this claim. Response, pg. 5.

Claimant has attached Exhibit 1, as the writing he proposes is “written policy” in a valid contract, “promising” he would not be promoted to a trainee position by IDOT. Exhibit 1 is alleged to give rise to Claimant’s contract rights, and his transfer in 2001 to a job paying less than his position as bridge tender is the inferred breach complained of. Claimant’s pleadings state that all allegations made are facts illustrating a breach of contract, and that Claimant’s acceptance of continued employment was the consideration, but his transfer to what he alleges to be a trainee position violated the “written policy” contained in the Promotional Employment Application (Ex. 1).

Claimant failed to attach the entire document, and did not attach his own Application, but instead, chose to use a copy of part of another IDOT employee. Claimant’s Application is a part of Respondent’s DRs. Claimant has not alleged in his Complaint that he was confused, misled, or actually relied upon the language now argued to be “written policy” which was breached by Respondent in accepting his new job rather than a lay-off. The Complaint and Response offer no allegations to explain any logical or purported duty owed Claimant for issues which appear to have no relevance to his employment, such as development plans for property near his home by unknown parties, and why [*254] he might be entitled to a bridge tender job in Joliet, or why he had a personal contract right regarding the purported early closure of “his” bridge. (It appears IDOT’s contractors completed the new bridge ahead of schedule, and per Respondent’s proofs, received a performance bonus.)

The Promotional Employment Application is a blank form, CMS 100-B (11/89) IL 401-0788, which is completed by an applicant. The form contains a number of boxes with labels such as (Leave Blank), “DO NOT WRITE IN FOLLOWING BOXES- …”, and the language Claimant asserts creates a promise in bold type “NOTE: Individuals may NOT be promoted into Trainee Titles.” The language is enclosed in a box as in the “Leave Blank” directive. This language follows the section which advises applicants in pertinent part that:

“Only State employees currently employed under the jurisdiction of the Illinois Personnel Code may apply.

Indicate your current status by marking only one of the boxes shown below. Applications for promotional examinations will be accepted only from eligible State employees who are currently:

1. Certified……

2. In Trainee status who received appointments….”

Respondent asserts the Application is exactly what it is titled, an application for promotion. Claimant has pleaded no facts to overcome the plain language of a form which makes no promise, offer of any position, specification of salary, or assurance of consideration. The form states what are logically read as directions to an applicant to provide information, and prohibitions which will result in return of the application or rejection of the submittal for consideration upon failure to comply with the underlying regulations of the Personnel Code, as well as possible loss of rights to promotion for misstatements of material facts by an applicant in the information he submits. We can find no reasonable inference that the document would lead an applicant to believe any offer had been made, or that any promise or obligation arose as to submission of the Application, or that Claimant received any contract right in completing the form.

Claimant’s citations for this proposition of a reasonable reliance on the statements made are inapposite to this claim, and distinguished on both fact and law. Herein, the first question as to any reliance arising relates to a document which must be determined to be in some fashion ambiguous to a reasonable person. The existence of ambiguity is a question of law. Plain language controls interpretation of a writing in the absence ambiguity. 52 Ill. Ct. Cl. 33, ( ).

Claimant has alleged no ambiguity.

[*255] The preface language that only State employees under the jurisdiction of the Illinois Personnel Code may apply is determinative in our reading of the Application as a purported contract and on the issue of “written policy” or a promise to Claimant .

Claimant’s allegations and arguments of a discrete contract or contract rights arising from the application are unsupported by allegation or authority that this document may be considered without reference to the underlying employment of the applicant, and that the applicant must be subject to the jurisdiction of the Personnel Code to apply. The document when read alone is not sufficient to create the contract or contract rights alleged. No allegations are put forth to establish ambiguity in the subject document, nor has Claimant actually alleged that he submitted the Application. Any written policy or reliance claimed by an applicant as arising from the Application must necessarily relate back to the underlying rules, employee handbook, and the terms of his existing employment, including regulations applying to promotion to create the claimed reliance and contract. These issues are explicitly referenced as under jurisdiction of the Personnel Code, and beyond our jurisdiction to review, absent a statutory exception or other legal authority conferring jurisdiction. As Respondent has argued and inferred in its Motion, Claimant’s rights of employment arose under other agreements and jurisdictions. It is clear Claimant has exhausted those remedies, and has had at least three opportunities to adjudicate the same or substantially same issues. The explicit denial of his grievances for breach of employment contract and collective bargaining agreements on the issues of seniority, compensation, job classification as a “new hire”, and a probationary period in his new position tends to support this conclusion.

We also note that Claimant was less than candid in pleading this claim, and failed to plead in accordance with the Court Rules and Court of Claims Act.

Failure to so plead is grounds for dismissal at 74 Ill. Adm. Code 790.90.

CONCLUSIONS

We conclude the Claimant may not prove a breach arising from the Application as no valid, enforceable contract arises from the submission of the Application.

We cannot conclude that the form might not create some contract right when considered with the entirety of the various underlying agreements.

However, as Respondent has argued, those agreements, rules and contracts are not within our jurisdiction to consider without statutory authority. Claimant has presented no such authority, and we have found no provision to remove Claimant’s employment contract from the jurisdiction of the Personnel Code.

[*256] His remedies for alleged breach or violations of CMS written policy were before the Civil Service Commission, and review by the circuit courts.

Claimant has failed to comply with the pleading requirements of the Court of Claims and the Illinois Code of Civil Procedure. The failure to comply with Secs. 790.50, and 790.60 of the Rules of the Court of Claims is grounds for dismissal under Sec. 790.90.

Claimant has failed to plead a cause of action upon which relief may be granted in the Court of Claims.

Respondent’s Motion to Dismiss is hereby Granted.