The Volokh Conspiracy
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Court Rejects Promissory Estoppel Claim by Lawyer Whose Job Offer Was Revoked for Speech About Israeli Retaliation Against Gaza
"Plaintiff offers no evidence to support a finding that Defendant's promise of support was an unambiguous promise to not penalize Plaintiff for any actions she took as long as she believed they were in support of her Arab Muslim heritage."
From Chehade v. Foley & Lardner, LLP, decided today by Judge Sharon Johnson Coleman (N.D. Ill.):
The following facts are accepted as true for the purpose of resolving Defendant's partial motion to dismiss.
Plaintiff is an Arab Muslim woman who graduated from Georgetown University Law Center in 2023. While in law school, Plaintiff worked at Defendant's Chicago law office as a summer associate during Summer 2022. On July 29, 2022, Defendant offered Plaintiff a position as a full-time associate attorney, starting in Fall 2023, after Plaintiff's law school graduation.
When applying for summer associate positions, Plaintiff alleges that a law firm's commitment to diversity and retaining diverse associates was important to her as an Arab Muslim woman. Because Plaintiff saw no references to either "Muslim" or "Arab" in Defendant's recruiting materials and learned that Defendant had no specific affinity group for Muslim or Arab attorneys, Plaintiff decided to discuss her concerns with Alexis Robertson, Defendant's Director of Diversity and Inclusion. In July 2022, Plaintiff spoke with Robertson to ensure that Defendant would support her "authentic self." Plaintiff alleges that Robertson promised her that Defendant "valued and supported [her] Arab Muslim heritage and perspective and embraced her history and values." Plaintiff alleges that Robertson's assurances were critical to her decision to accept the full-time employment offer and not pursue other job opportunities.
Plaintiff was scheduled to start her job on October 23, 2023. In the weeks leading up to the scheduled start date, Plaintiff, a long-time supporter of Palestinian human rights, spoke out about Israel's bombing of the civilians of Gaza following the Hamas attack against Israel on her personal social media accounts and at an October 11, 2023 meeting at the City of Chicago's City Hall.
Plaintiff alleges that, prior to her scheduled start date, Defendant began investigating her background and found her social media posts speaking out in support of Gaza. Plaintiff alleges that Defendant's management personnel, including Robertson, then created a plan to rescind Plaintiff's employment offer. On October 21, 2023, Lisa Noller, a partner and chair of Defendant's litigation group, asked Plaintiff to attend a meeting the following day at Defendant's Chicago office to discuss Plaintiff's social media presence. Plaintiff reached out to Robertson for guidance and support, but Robertson never responded.
On October 22, 2023, Plaintiff attended the meeting with Noller and Frank Pasquesi, the managing partner of Defendant's Chicago office. During the meeting, Plaintiff alleges that she was interrogated in a hostile manner about her student activism, community associations, remarks at the October 11, 2023 City Hall meeting, and social media posts about Hamas's attack and Israel's response. Plaintiff alleges that she was also interrogated about her previous leadership role in Law Students for Justice in Palestine ("SJP"), a Georgetown University Law Center student organization, and SJP's recent posts about the conflict, despite Plaintiff's contention that she was no longer involved in SJP after graduation. Following the meeting, and later that same day, Defendant revoked Plaintiff's employment offer.
Plaintiff sued, alleging, among other things, promissory estoppel, which is cousin to breach of contract. But the court dismissed that claim:
The salient question here is whether Robertson's statements that Defendant valued and supported Plaintiff's Arab Muslim heritage and perspective and embraced her history and values constituted an unambiguous promise that Plaintiff's employment offer would not be rescinded for her activism and advocacy efforts that she viewed as supportive of her Arab Muslim heritage. The Court holds that it does not.
Plaintiff offers no evidence to support a finding that Defendant's promise of support was an unambiguous promise to not penalize Plaintiff for any actions she took as long as she believed they were in support of her Arab Muslim heritage. To conclude otherwise would mean that Plaintiff would have a "get out of jail free card" for any action that she took, even if it violated Defendant's values and policies, due to her status as an Arab Muslim woman.
Plaintiff further alleges that Robertson knew Plaintiff was active in the Arab Muslim community, and thus Robertson's statements meant that Defendant would support Plaintiff's activism. To support her argument, Plaintiff attaches her resume and an essay she authored as exhibits to her response brief to show that Defendant was aware of her involvement with SJP and her experience as an Arab Muslim woman. But neither Plaintiff's alleged facts nor the exhibits reasonably impute knowledge of Plaintiff's activism to Robertson, much less Defendant. Nor does Plaintiff allege that she had conversations with Robertson about such activism.
The case Plaintiff cites is also unpersuasive. In Dugas-Filippi v. JP Morgan Chase, N.A. (N.D. Ill. 2014), the court found that an employer's oral promise that plaintiff would not be fired if she took six-month paid discretionary leave was sufficiently clear and definite to support a promissory estoppel claim where plaintiff was fired for taking the six-month discretionary leave despite the employer's at-will policy.
Here, Robertson's statements made no promise that Plaintiff's employment would not be rescinded. Instead, the statements only concerned support for Plaintiff as an Arab Muslim woman. here was no implicit promise that Plaintiff had total job protection no matter what she did or said so long as she believed those actions were related to her ethnicity, religion, or association.
Plaintiff essentially asks the Court to conclude that the parties understood that the promise of support implied a promise of job security regardless of Plaintiff's actions. However, the facts do not support the existence of a common understanding among the parties that would transform Robertson's statements of support into a promise to not rescind Plaintiff's employment offer. The Court finds that there was no unambiguous promise and no common understanding among the parties to support a promissory estoppel claim.
Plaintiff also sued for discrimination based on ethnicity, religion, and association; those claims weren't the subject of a motion to dismiss, and still remain. Note that Illinois law restricts private threats aimed at speech related to candidates or ballot measures:
Any person who, by force, intimidation, threat, deception or forgery, knowingly prevents any other person from (a) registering to vote, or (b) lawfully voting, supporting or opposing the nomination or election of any person for public office or any public question voted upon at any election, shall be guilty of a … felony [and shall be subject to civil liability].
This prohibition on "threat[s]" may cover not just threats of crime but also threats of economic retaliation: Thus, for instance, federal law bans "intimidat[ing], threaten[ing], coerc[ing], or attempt[ing] to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such other person … to vote as he may choose" has been interpreted as prohibiting threats of economic retaliation. Likewise, the Fair Housing Act makes it illegal "to coerce, intimidate, threaten, or interfere with any person … or on account of his having aided or encouraged any other person in the exercise or enjoyment [of housing nondiscrimination rights]," and courts have interpreted this as barring the firing of employees who rented to black and Mexican-American applicants, and barring the denial of agency funds to an organization that complained about a discriminatory permit denial.
But, unlike the statutes in some other states (and ordinances in some cities and counties, including in Urbana), the Illinois statute doesn't extend to job discrimination based on advocacy of ideological views that aren't directly tied to elections.
Gerald L. Pauling and Tracy M. Billows (Seyfarth Shaw LLP) represent defendant.
