IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DR. RICHARD E. MATLAND,

Plaintiff,

v.

LOYOLA UNIVERSITY OF CHICAGO,

Defendant.

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MEMORANDUM OPINION AND ORDER

Plaintiff Richard E. Matland has sued his employer,

defendant Loyola University Chicago, for violations of the

Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.

(Counts I – II), and for claims alleging promissory estoppel

(Count III) and fraudulent misrepresentations (Count IV). 

Defendant has moved to dismiss Counts III and IV of plaintiff’s

complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure. For the reasons state below, I grant defendant’s

motion.

I.

Plaintiff was a tenured professor at the University of

Houston in Houston, Texas, when he was actively recruited by

defendant. In January 2006, he accepted defendant’s offer of an

appointment as the Rigali Professor (“Rigali Chair”). At the

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time the offer was made, defendant’s agent orally represented to

plaintiff that the Rigali Chair “was to be permanent in nature”

subject to a “retention review.” (Compl., at ¶ 39). Ultimately,

defendant sent a written offer of employment dated February 16,

2006, which plaintiff countersigned on that same day. 

The resulting employment contract explains that plaintiff’s

appointment to the Rigali Chair was for a five-year renewable

term, beginning with the 2006-2007 academic year and continuing

through 2010-2011. The contract details the standards by which

defendant would decide whether it was going to renew plaintiff’s

appointment to the Chair. Specifically, the contract states that

[c]riteria to determine possible reappointment as the

Rigali Professor may include a sustained record of

excellence in research and teaching, continued

recognition for a record of excellence in research and

teaching, continued recognition for a record of

excellence in research and scholarship internal and

external to the University, and an ongoing contribution

to your field of learning and to the University. The

appointment carries the academic rank of Professor and

includes, subject to the approval of faculty committees,

tenure.

Additionally, the employment contract explains that should

plaintiff’s appointment to the Rigali Chair come to an end, he

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could remain on the faculty and assume full-time teaching and

research responsibilities.

After beginning to work for defendant as the Rigali Chair,

plaintiff began to experience health problems and was diagnosed

with interstitial lung disease in 2007. Plaintiff underwent

extensive medical treatments, and these treatments continued

through subsequent years. In May 2010, defendant informed

plaintiff that his review for renewal of the Rigali Chair would

take place in the fall of 2010. Plaintiff submitted the required

materials in June 2010. During the review process, four

nationally recognized scholars at top universities evaluated

plaintiff’s materials and wrote letters in support of his

reappointment to the Rigali Chair. Still, at the close of the

review defendant advised plaintiff that his appointment to the

Rigali Chair would not be renewed.

Plaintiff appealed the decision utilizing defendant’s

internal procedures. Initially, plaintiff’s appeal was rejected,

but subsequently, the relevant committee concluded that the

review process had failed to adequately account for plaintiff’s

health and medical condition. The committee recommended that the

review process be redone. Despite this decision, defendant’s

president, Michael Garanzini, overturned the committee’s decision

and again advised plaintiff that he was not to be retained as the

Rigali Chair. Plaintiff continues to be employed by defendant.

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II.

A motion to dismiss tests the sufficiency of the claims, not

their merit. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th

Cir. 1990). I must accept all well-pleaded allegations in the

complaint as true and draw all reasonable inferences in

plaintiff’s favour. McCann v. Neilsen, 466 F.3d 619, 622 (7th

Cir. 2006). Dismissal is warranted only if the factual material

in the complaint fails plausibly to suggest that defendant is

entitled to relief. Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555-56 (2007).

As a general rule, I may consider only the pleadings at the

motion to dismiss stage. Rosenblum v. Travelbybus.com Ltd., 299

F.3d 657, 661 (7th Cir. 2002). Defendant has attached the

employment contract (i.e. the executed offer letter) to its

motion to dismiss, though plaintiff did not attach it to his

complaint. For purposes of a 12(b)(6) motion, a document

attached to the defendant’s motion to dismiss is considered part

of the pleadings only if it is “referred to in the plaintiff’s

complaint and [is] central to her claim.” Venture Associates

Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.

1993). Plaintiff refers to the offer in his complaint and even

alleges that in accepting the offer there was a binding contract

between the parties. (Compl., at ¶ 40). While plaintiff does

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not assert a breach of contract claim, the employment contract is

at the core of the parties’ relationship and is central to

plaintiff’s claims for promissory estoppel and fraudulent

inducement. See Midway Home Entm’t, Inc. v. Atwood Richards,

Inc., 1998 WL 774123, at *1 (N.D. Ill. 1998) (concluding that

contract not attached to the complaint but submitted by the

defendant with a motion to dismiss was “central to plaintiffs’

claims that they were fraudulent misrepresented and induced into

entering into this contract”). I also note that plaintiff does

not dispute that the employment contract attached to defendant’s

motion is the document that governs the parties’ contractual

relationship. As a result of the foregoing, the employment

contract is considered to be part of the pleadings and I may

consider it in deciding defendant’s motion to dismiss. Moreover,

to the extent that the terms of the employment contract conflict

with the allegations in the complaint, the employment contract

prevails. Centers v. Centennial Mortg., Inc., 398 F.3d 930, 933

(7th Cir. 2005).

III.

A. Promissory Estoppel

Promissory estoppel provides a cause of action “where a

promise has been made which was relied upon by the promisee to

his detriment in such a manner as to make it a fraud or injustice

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not to enforce the promise.” Newton Tractor Sales, Inc. v.

Kubota Tractor Corp., 906 N.E.2d 520, 526 (Ill. 2009) (quoting R.

Brazener, Annotation, Promissory Estoppel as Basis for Avoidance

of Statute of Frauds, 56 A.L.R.3d 1037, 1042 (1974)). To state a

claim for promissory estoppel, plaintiff must allege that “(1)

defendant made an unambiguous promise to plaintiff, (2) plaintiff

relied on such promise, (3) plaintiff’s reliance was expected and

foreseeable by defendant[], and (4) plaintiff relied on the

promise to [his] detriment.” Id., at 523-24 (citing Quake

Constr., Inc. v. Am. Airlines, 565 N.E.2d 990, 1004 (Ill. 1990)). 

“A plaintiff’s reliance must be reasonable and justifiable.” 

Ross v. May Co., 880 N.E.2d 210, 217 (Ill. App. Ct. 2007) (citing

Quake Constr., 565 N.E.2d at 1004).

The gravamen of defendant’s argument is that plaintiff’s

promissory estoppel claim must be dismissed because the

employment contract addresses the same subject matter as the

alleged promise. In response, plaintiff contends that defendant

misconstrues Illinois law on promissory estoppel. But by

insisting that defendant is arguing that a claim for promissory

estoppel is unavailable “if a defendant can point to any document

that is arguably a contract that contains any language at all

that nears the promise at issue” (Pl.’s Memo. in Opp., at 2),

plaintiff overstates defendant’s argument and fails to adequately

address the central issue. Defendant is not arguing that any

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agreement would necessarily require dismissal of plaintiff’s

promissory estoppel claim. Instead, defendant is arguing that

the employment contract governs the length and renewal terms of

plaintiff’s appointment to the Regali Chair. The terms of the

written contract—which specify that the Chair is given for a

five-year term, detail the requirements for renewal, and provide

for a contingency plan should the Chair not be renewed—govern the

relationship and contradict the alleged oral promise that the

Chair position would be “permanent in nature and would entail

merely a ‘retention review’”. (Compl., at ¶ 40).

Courts have routinely held that a plaintiff cannot maintain

a claim for promissory estoppel where a written contract governs

the relationship between the parties. “Promissory estoppel is

meant for cases in which a promise, not being supported by

consideration, would be unenforceable under conventional

principles of contract law. When there is an express contract

governing the relationship out of which the promise emerged, and

no issue of consideration, there is no gap in the remedial system

for promissory estoppel to fill.” All-Tech Telecom, Inc. v.

Amway Corp., 174 F.3d 862, 869 (7th Cir. 1999) (citations

omitted); see also Prentice v. UDC Advisory Services, Inc., 648

N.E.2d 146, 150-51 (“[O]nce it is established, either by an

admission of a party or by a judicial finding, that there is in

fact an enforceable contract between the parties and therefore

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consideration exists, then a party may no longer recover under

the theory of promissory estoppel.”). In other words, “once

consideration is found to exist, a party to the contract can no

longer maintain an action for promissory estoppel where the

performance which is said to satisfy the requirement of

detrimental reliance is the same performance which supplies the

consideration for the contract.” Prentice, 648 N.E.2d at 151.

Here, plaintiff admits that there exists an enforceable

contract between the parties. There is also no issue of

consideration. Plaintiff alleges that he resigned from his thencurrent position both as consideration for the employment

contract and in detrimental reliance on the alleged oral promise. 

(Compl., at ¶ 41-42). Plaintiff pleads himself out of court by

alleging that his performance under the written contract is the

same performance that would, in the absence of the contract,

satisfy the requirement of detrimental reliance. He therefore

cannot maintain his claim for promissory estoppel. 

The cases cited by plaintiff do not dictate a different

outcome. In Janda v. U.S. Cellular Corp., 961 N.E.2d 425 (Ill.

App. Ct. 2011), the plaintiff’s relationship with the defendant

employer was governed by an employment agreement. During the

course of his employment, the plaintiff and other employees were

asked to take part in a focus group meeting concerning certain

members of management. The participants were told that

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everything they said during the focus group would remain

confidential and that there would be no retaliation for any

comments made during the meeting. In reliance on those

representations, the participants, including the plaintiff, spoke

candidly. However, after the meeting, the plaintiff and others

who had spoken candidly were terminated, transferred, or left the

company. The court in Janda reiterated the holding of Prentice,

quoted above, but found that the plaintiff’s promissory estoppel

claim based on the defendant’s promise to keep the contents of

the meeting confidential was not barred by the existence of the

employment agreement. “[T]he performance giving rise to

plaintiff’s detrimental reliance in his promissory estoppel claim

is not the same performance that supplied the consideration for

the contract.” Janda, 961 N.E.2d at 444. Whereas the

plaintiff’s performance satisfying the requirement of detrimental

reliance was his candid participation in the focus group, his

performance supplying consideration for the employment agreement

was merely the plaintiff’s promise to work for the defendant. 

Id. The fact that there were two distinct promises requiring

separate consideration for each in Janda distinguishes that case

from the case here.

Johnson v. George J. Ball, Inc., 617 N.E.2d 1355 (Ill. App.

Ct. 1993) is similarly distinguishable. In that case there was

no written employment contract, only the defendant’s oral

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promises regarding the plaintiff’s employment. There, the only

question before the court was whether there was sufficient

consideration to warrant enforcing the oral promises. As for the

two federal cases cited in Johnson and referred to by plaintiff,

Buian v. J.L. Jacobs & Co., 428 F.2d 531 (7th Cir. 1970) and

Payne v. AHFI/Netherlands, B.V., 522 F.Supp. 18 (N.D. Ill. 1980),

those cases raise the question of when a plaintiff may have a

breach of contract claim where an employment assignment has been

terminated prior to the scheduled completion date. Here, by

contrast, defendant did not terminate plaintiff’s Regali Chair

position early but instead refused to renew it after the fiveyear term had ended. Further, neither Johnson, Buian, or Payne

involved any claims for promissory estoppel.

For these reasons, Count III of plaintiff’s complaint is

dismissed with prejudice.

B. Fraudulent Misrepresentation

To state a claim for fraudulent misrepresentation, plaintiff

must allege “(1) a false statement of material fact; (2)

defendant’s knowledge that the statement was false; (3)

defendant’s intent that the statement induced the plaintiff to

act; (4) plaintiff’s reliance upon the truth of the statement;

and (5) plaintiff’s damages resulting from reliance on the

statement.” Connick v. Suzuki Motor Co., Ltd., 675 N.E.2d 584,

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591 (Ill. 1996) (citations omitted). Plaintiff’s “reliance upon

the misrepresentation must have been justified. . . . That is,

[plaintiff] must have had a right to rely upon the statement.” 

Cozzi Iron & Metal, Inc. v. U.S. Office Equip., Inc., 250 F.3d

570, 574 (7th Cir. 2001) (citing Charles Hester Enters., Inc. V.

Ill. Founders Ins. Co., 499 N.E.2d 1319, 1323 (Ill. 1986)). 

Reliance is generally a question of fact but may be determined on

a motion to dismiss as a matter of law “when no trier of fact

could find that it was reasonable to rely on the alleged

statements or when only one conclusion can be drawn.” Id.

(citing Neptuno Treuhand-Und Verwaltungsgesellschaft Mbh v.

Arbor, 692 N.E.2d 812, 819 (Ill. App. Ct. 1998)). In cases such

as this, where a written contract governs the parties’

relationship, “[a]s long as the complaining party could have

discovered the fraud by reading the contract and had the

opportunity to do so, Illinois courts have refused to extend the

doctrine of fraudulent inducement.” Id. at 574-75 (citations

omitted).

Defendant raises three arguments in support of its motion to

dismiss Count IV of plaintiff’s complaint, only one of which I

will discuss here. In relevant part, defendant argues that

plaintiff’s fraudulent misrepresentation claim fails because

plaintiff has not, and cannot, allege reasonable reliance. 

According to defendant, the terms of the contract contradict the

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oral promises alleged in the complaint. Because the contract

contradicts the alleged oral promises, defendant argues,

plaintiff’s alleged reliance on oral statements of defendant’s

agent was unreasonable as a matter of law. In response,

plaintiff first argues that he has pleaded that he was in fact

misled by the statements. But this is not enough, as the test is

whether as a matter of law it was reasonable to rely on the

misrepresentations. While not disputing that he had an

opportunity to read the contract before accepting defendant’s

offer of employment, plaintiff also argues that he could not have

discovered the fraud even by reading the contract. 

Where an alleged misrepresentation is directly contradicted

by the terms of a contract and the plaintiff could have

discovered the fraud, reliance on the misrepresentation is

unreasonable as a matter of law. Cozzi, 250 F.3d at 575; see

also Regensburger v. China Adoption Consultants, Ltd., 138 F.3d

1201, 1208 (7th Cir. 1998) (“[T]he [plaintiffs] cannot establish

that they reasonably relied on the pre-contract promises when the

contractual language was so explicitly to the contrary.”). The

alleged oral promise of a permanent appointment to the Rigali

Chair is contradicted by the plain language of the contract which

specifies that the “appointment is for a five year renewable term

(with annual review), beginning with Academic Year 2006-07 and

continuing through 2010-2011.” (Contract, Def.’s Ex. B). And

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while plaintiff insists that “retention review” is a term of art

in the academic setting, he does not even attempt to argue that

what was promised to him orally is not contradicted by the

criteria for renewal of the Rigali Chair described in the first

paragraph of the contract. In addition, the terms describing the

contingency of plaintiff losing the Rigali Chair should have

served as further notice that reappointment was not guaranteed.

In other words, plaintiff’s contention that the contract is

nothing more than a vague, standard academic offer letter is

unavailing. That the employment contract refers to other

documents does not affect the fact that the contract itself

clearly describes the terms of the Rigali Chair appointment. As

described above, the two page contract contains terms that

contradict both of the alleged misrepresentations. At bottom,

plaintiff appears to be arguing that while he was led to believe

that defendant would rubber stamp his reappointment to the Rigali

Chair, he was in fact subjected to a review of the type described

in the contract. Plaintiff cannot sustain a claim for fraudulent

misrepresentation under these circumstances.1

1 I note briefly that, again, the cases cited by plaintiff do

not help him. Johnson does not touch upon the issue of

reasonable reliance, and, in any case, there was no written

employment contract governing the parties’ relationship. 

Similarly, Grundy Cnty. Nat’l Bank v. Westfall, 301 N.E.2d 28

(Ill. App. Ct. 1973) does not discuss reasonable reliance; nor

does that case involve a claim for fraud. Finally, Janda is also

distinguishable in that there was no fraud claim at issue in that

case, and to the extent that the court there analyzed aspects of

the plaintiff’s promissory estoppel claim by analogizing to the

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IV.

For the foregoing reasons, Counts III and IV of plaintiff’s

complaint are dismissed with prejudice.

 ENTER ORDER:

 ____________________________

 Elaine E. Bucklo

 United States District Judge

Dated: November 27, 2012

reasonable reliance requirement of a fraud claim, Janda is

inapposite for the reasons discussed above.

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