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Pundt v. Millikin University





Appeal from the Circuit Court of Macon County; the Hon. James A. Hendrian, Judge, presiding.


The plaintiff filed a complaint in the circuit court of Macon County against the defendant for breach of employment contract. His first complaint was dismissed. He filed a first amended complaint, the defendant filed a motion to dismiss and the court found that no set of facts which the plaintiff could plead would entitle him to relief for breach of employment contract. The court entered an order dismissing the first amended complaint with prejudice on July 11, 1985, and the plaintiff has taken an appeal from that order. The issues presented by the plaintiff's appeal are: (1) whether the defendant Millikin University's staff handbook was an employment contract between the plaintiff and defendant; and (2) whether plaintiff's first amended complaint was sufficient to state a cause of action.

Plaintiff was an employee of the defendant, being hired as temporary for a probation period. After successfully completing the probationary period, he was promoted to a permanent, full-time security guard on or about July 1, 1982. After his initial employment and sometime prior to his promotion to a full-time status, he was presented with the handbook. The plaintiff alleged that the Millikin University staff handbook was presented to the plaintiff by the defendant as the employment contract between the university and the plaintiff, that the handbook provided in part:

"The University will, to the best of its ability:

4. provide security of employment to those who are constantly industrious, loyal, cooperative and honest."

He further alleged that the staff handbook provided and states in paragraph 3.13(2) that an employee may only be terminated for just cause outlined in the handbook or as otherwise determined in the good judgment and fair treatment of Millikin. The plaintiff does not allege the university failed to follow the grievance procedure set forth in its manual granting plaintiff certain rights if his employment was terminated. Section 3.13(2), Termination for Employment, in the handbook provides as follows in part:

"The University's rules concerning dismissal are intended to be general guidelines to good judgment and fair treatment. Just cause for dismissal is not limited to those violations that follow as there may be other offenses committed that may warrant this action depending upon a number of factors. The University reserves the right to make changes to the listing contained in subparagraphs (A) and (B) at any time."

Section 3.5 of the handbook in defining regular full-time employees states that they work "a regular schedule of 32 hours or more per week," that they may participate in university benefit programs, and "may be discharged for cause only." The plaintiff alleged in his complaint that he was terminated without just cause as outlined in the manual, that he had fully complied with the grievance procedures, and had been denied reinstatement or reemployment with Millikin.

The plaintiff argues that Duldulao v. St. Mary of Nazareth Hospital Center (1985), 136 Ill. App.3d 763, 483 N.E.2d 956, should be followed in reversing the decision of the trial court. The issue in Duldulao was similar to the instant case and the First District Appellate Court agreed with the decision in Kaiser v. Dixon (1984), 127 Ill. App.3d 251, 468 N.E.2d 822, appeal denied (1984), 101 Ill.2d 582. The Kaiser court refused to follow Sargent v. Illinois Institute of Technology (1979), 78 Ill. App.3d 117, 397 N.E.2d 443.

The instant case is similar to Duldulao in that the manual was not given to the employee at the time of first employment but during a probation period. Duldulao found that "the better-reasoned approach is to bind the employer to the terms in its policy manual when the manual imposes obligations on both the employer and employee, regardless of whether the manual was actually `bargained-for.'" (Duldulao v. St. Mary of Nazareth Hospital Center (1985), 136 Ill. App.3d 763, 765, 483 N.E.2d 956, 958.) It further found that the manual was binding upon the employer since it did impose obligations on both the employee and employer.

Piper v. Board of Trustees (1981), 99 Ill. App.3d 752, 760, 426 N.E.2d 262, 267, involved a written contract which incorporated the personnel manual. This court stated with respect to the defendant's reliance upon the Sargent case:

"There, the plaintiff did not allege a written contract, so it would be impossible to incorporate by reference a personnel manual."

As stated in Piper, there was a written contract and it did incorporate the bylaws, policies, rules, and regulations of the board of trustees. In the instant case, there was no written contract and the handbook was not incorporated in any form of contract.

In Sargent, the plaintiff contended that the terms of the personnel manual adopted and issued by Illinois Institute of Technology to its employees became an employment contract binding the parties to its terms and relied on Carter v. Kaskaskia Community Action Agency (1974), 24 Ill. App.3d 1056, 322 N.E.2d 574. In Carter, the court held that the personnel policy manual adopted by the employers and employees became a part of the employment contract, but it should be mentioned in Carter the manual was adopted subsequent to the plaintiff's employment and was considered a modification of the original employment contract. The employer had compiled the manual and reviewed it with the employees who had accepted it. The court ...

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