The opinion of the court was delivered by: Mihm, District Judge.
Defendant, E.I. DuPont De Nemours and Company, Inc. (hereinafter
"DuPont"), operates a plant in El Paso, Illinois. Plaintiff, Kathryn
Shepley, was employed by DuPont at the El Paso plant from October of 1986
until May 26, 1987 when she was terminated.
Shepley brought this lawsuit to contest her termination. She claims
that DuPont promulgated a Disciplinary Policy which bestowed upon her
contractual rights to some lesser form of discipline than discharge.
Diversity jurisdiction has been pled. DuPont has moved for summary
judgment on the grounds that (a) Shepley has admitted that she was an at
will employee rather than a contractual employee; (b) the Disciplinary
Policy was not a contract; and (c) even if the policy were a contract,
Shepley's discharge was justified under the policy. For the reasons
stated below, the Motion for Summary Judgment is GRANTED.
As Shepley was opening the mail on this day, she encountered a large
interoffice envelope addressed to another distribution employee, Deb
Stine, who normally opened mail in the distribution office. Shepley
opened the envelope and removed a sealed blue greeting card sandwiched
between two white pieces of paper. There was no writing on the envelope.
She walked over to another desk where a co-employee, Tony Haas, was on
the phone, took an emery board and opened the blue envelope. Inside the
blue envelope was a greeting card which Shepley removed from the blue
envelope as she walked back to her desk.
Shepley opened the card and saw that it said "Something about missing
you is like losing your balloons and ice cream at the same time." Instead
of a signature, the card was signed with a logo which Shepley recognized
as that of Randy Maurer, another employee at the DuPont facility. Shepley
concluded that the personal card had been sent from Mr. Maurer to Ms.
Shepley was aware of rumors within the plant that Ms. Stine and Mr.
Maurer were having an extramarital affair. Both were married to others,
and Mr. Maurer's wife, a friend of Shepley's, worked at the DuPont plant
as well. Shepley became angry and crumpled both the card and the blue
envelope. She then put the card back into the large distribution
At this time, Mr. Haas asked Shepley what she was doing. Despite the
fact that she thought that the card was a personal message from Mr.
Maurer to Ms. Stine, she pulled out the distribution envelope, opened it
up, pulled out the envelope with the card, opened it up and showed the
card to Mr. Haas.
Later that morning, after Mr. Haas left the office, Bobbi Hornbeck,
another distribution employee, came into the distribution office. Shepley
again removed the card from the envelope and showed it to Ms. Hornbeck as
well. Glenda Malcolm arrived shortly thereafter. When Ms. Malcolm arrived
at the distribution office, Shepley showed the card to Ms. Malcolm as
well. Shepley then took the envelope containing the card and placed it in
her bottom desk drawer. Later that morning, Shepley's husband, also an
employee of DuPont at the El Paso plant, came in to fix the office air
conditioner. She showed the card to her husband as she had shown it to
Mr. Haas, Ms. Hornbeck and Ms. Malcolm.
At approximately lunch time, Shepley took the card out of her desk
drawer and locked it in her own personal locker. From the time Shepley
opened the card until her discharge on May 27, 1987, she made no effort to
give the card to or discuss it with either Mr. Maurer or Ms. Stine. The
card remained locked in Shepley's personal locker until plant management
instructed her to retrieve it.
Almost immediately after Shepley began showing the card to her
co-workers, she became aware of rumors which had begun to spread
throughout the plant concerning the card. For example, that afternoon,
two employees, Bill West and Dan Harrison, came into the distribution
office and asked Shepley if she had been getting any love letters in the
mail lately. She also knew that her husband had approached Mr. Maurer
about his knowledge of the card. In addition, Shepley knew that Mr.
Maurer had talked with Glenda Malcolm and had asked her about the rumors
During the following week, Shepley mentioned to Tommy Bill, the
Department Manager of Operations, that she had opened a piece of mail
addressed to another employee. Bill, understanding the comments to mean
that she was concerned with having innocently opened someone else's mail
and not that she had failed to subsequently deliver it to its rightful
recipient, advised her that there was nothing wrong with inadvertently
opening another's mail and that he, in fact, had mistakenly done so with
the mail of an individual (Mr. Brill) with a name similar to his own.
After this discussion, Page directed Tommy Bill to talk with Shepley
and ascertain what was going on. Shepley met with Bill later that morning
and admitted upon inquiry that she still had the card. Bill directed her
to retrieve the card from her locker, which she did. When Page learned of
this, he asked Bill and Gary Lewis, the Human Resource Manager, to
conduct an investigation of the incident and to make a recommendation
based on that investigation. The investigation was started that morning,
May 27, 1987.
Bill and Ed Johnson, the Human Resources Facilitator, interviewed
employees who were involved with, or had knowledge of, the incident. They
first interviewed Shepley. During the interview, Shepley admitted that
she had realized, upon opening the card, that the mail was personal. She
advised Bill and Johnson that she intended to keep the card in her locker
until things cooled down and then take it home and burn it. She also
stated that if Randy and Dee Maurer had not been such good friends, she
would have just put the card back in the mail to Deb Stine after she had
opened it. When asked if she intended to give the card to Ms. Stine,
Shepley replied, "I had no intention of giving the card to Deb."
Shepley was asked three times during the interview to identify all
persons to whom she had shown the card. On each occasion, she replied that
she had shown the card only to her husband and to Mr. Haas. While she
couldn't remember, she also believes she may have told them she had shown
the card to Ms. Horubeck. Despite being asked three times, however, she
did not reveal that she had shown the card to Ms. Malcolm. Shepley claims
that she did not recall during the meeting that she had shown the card to
Ms. Malcolm, but admitted that she recalled later that same day that she
had shown the card to Ms. Malcolm and that she made no effort to apprise
management of such at any time after her interview.
After Shepley's interview, she was sent home and told not to return to
work until she heard from DuPont. She knew at that time that her job was
in serious jeopardy.
On May 22, 1987, the senior management team at the El Paso facility met
to discuss the matter. Present at the meeting were Mr. Page, the Plant
Manager; Mel Jennings, the Economics and Scheduling Manager; Hank Brill,
the Finance Manager; Gary Lewis, the Human Resources Manager; Gordon
Marsden, the Technical Manager; Bill, the Operations Manager; and Ed
Johnson, the Human Resources Facilitator. Based upon its investigation of
the incident, Management determined that Shepley had committed the
following three offenses: (1) she had withheld personal mail with no
intent to deliver it to its rightful owner or recipient; (2) she had
disrupted the workplace by showing the personal mail to other employees;
and (3) she had lied to supervision during the May 21 interview when,
despite being asked three times, she failed to identify all the people to
whom she had shown the card.
Page concluded that, based upon the aforesaid facts, Shepley's
employment would be terminated on May 26, 1987. Shepley was called in to
the plant on that day, at which time she was informed of her discharge
and the reasons therefor. At this termination meeting, Shepley was asked
one last time to identify those individuals to whom she had shown the
card; she again failed to identify Ms. Malcolm.
B. The Disciplinary Policy
In approximately October of 1986, DuPont established a written
Disciplinary Procedure at its El Paso facility. The Disciplinary
Procedure sets forth a progressive disciplinary scheme for various
misconduct and further provides that:
EMPLOYEES CAN GO DIRECTLY TO MORE SEVERE STEPS
(SPECIAL REVIEW, PROBATION, TERMINATION) IN THE
DISCIPLINARY PROCESS IF THE INCIDENT WARRANTS. SOME
EXAMPLES: MAJOR LOCKOUT VIOLATION, SHOOTING A
SUPERVISOR, SUBSTANCE ABUSE.
At no time during her employment with DuPont did Shepley ever receive a
written copy of the Disciplinary Procedure. Her first exposure to
disciplinary procedures came shortly after her hire by DuPont, when she
attended a company meeting at which disciplinary procedures were
discussed. She recalls only vaguely this discussion and believes that it
was addressed solely to discipline imposed for safety violations. Shepley
recalls that during this meeting a slide presentation was made at which
several pages of the Disciplinary Procedure were displayed. She recalls
that she was shown ...