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SHEPLEY v. E.I. DUPONT DE NEMOURS AND COMPANY

August 21, 1989

KATHRYN J. SHEPLEY, PLAINTIFF,
v.
E.I. DUPONT DE NEMOURS AND COMPANY, INC., DEFENDANT.



The opinion of the court was delivered by: Mihm, District Judge.

ORDER

I. BACKGROUND

A. Facts

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.

On May 15, 1986, Shepley was working as the "whiz" in the Distribution Office at the El Paso plant. As the whiz, she was responsible for monitoring trucks coming into and going out of the plant. On this particular day, Shepley was also responsible for opening the mail which came into the Distribution Office, although she had not been instructed on any particular method of handling personal mail.

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. Stine.

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 envelope.

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 going around.

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 ...


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