Paso facility. On the morning of May 21, 1987, Maurer came to Page
to discuss the rumors. Mr. Maurer stated that his wife, Dee, also a
DuPont employee, was very distraught and upset and had taken off work
because of the rumors that he and Ms. Stine were having an extramarital
affair. Maurer requested time to go home and console his wife and attempt
to work out the marital problems that had developed over this incident.
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 the page quoted above pertaining to by-pass of
disciplinary steps, but she does not recall any discussion of the steps
of the disciplinary procedure.
Shepley's next exposure to the disciplinary procedure came at a weekly
safety meeting conducted by her team leader, Tom Harvey, sometime in
March, April, or May of 1987. At this meeting, Mr. Harvey outlined the
disciplinary steps. Shepley admits, however, that she was only
half-listening and cannot recall what the description entailed. She does
recall Mr. Harvey informing her team members that shooting a supervisor,
alcohol and drugs, and stealing were examples of actions which would
result in immediate termination. Shepley also admits that she understood
that other actions could result in immediate termination as well.
C. The Summary Judgment Motion
Plaintiff's Complaint is based on the theory that DuPont's Disciplinary
Procedure constituted a contract between Plaintiff and DuPont under
Duldulao v. St. Mary of Nazareth Hospital, 115 Ill.2d 482, 505 N.E.2d 314,
106 Ill.Dec. 8 (1987) and that DuPont violated this contract by
discharging Plaintiff rather than imposing a lesser penalty as is
provided for in the progressive discipline procedure in DuPont's
DuPont has moved for summary judgment on the Complaint on the basis
that: (a) Plaintiff failed to establish that the Disciplinary Policy was
a contract between DuPont and Plaintiff; (b) Plaintiff admitted in
Paragraph 3 of her Complaint that she was an at-will employee and thereby
foreclosed any claim of contractual rights; and (c) in the alternative,
even if the Disciplinary Policy was a contract between DuPont and
Plaintiff, Plaintiff's actions, nevertheless, justified her discharge.
Plaintiff disputes each of these contentions arguing that the elements
of contract formation have been established and that she is guilty of no
misconduct justifying discharge under the policy. Plaintiff contends that
her actions were a result of Defendant's failure to instruct her on
proper handling procedures of personal interoffice mail.
To support this contention, Plaintiff attached an affidavit to her
Response to DuPont's Motion for Summary Judgment wherein she states that
a fellow employee had taken possession of a piece of interoffice mail and
had reported it to her supervisor without any action being taken.
Premised on this affidavit, Plaintiff contends that there is an issue of
material fact concerning whether her discharge constituted a breach of
contract by Defendant.
A. Summary Judgment Generally
The Federal Rules of Civil Procedure provide that a party is entitled
to summary judgment whenever "the pleadings [and] depositions . . .
together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c).
The Supreme Court has counseled that the summary judgment procedure is
"properly regarded not as a disfavored procedural shortcut, but rather an
an integral part of the Federal Rules." Celotex Corporation
v. Catrett, 477 U.S. 317, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986). A party seeking to avoid summary judgment
must provide evidence such that a reasonable trier of fact would
return a verdict for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d
If the evidence is merely colorable, or is not
significantly probative, summary judgment may be
[T]he judge must ask himself not whether he thinks the
evidence unmistakably favors one side or the other but
whether a fair minded jury could return a verdict for
the plaintiff on the evidence presented.
To survive summary judgment, Plaintiff must present such evidence as to
each element essential to her claim. The failure to do so with respect to
any essential element "necessarily renders all other facts immaterial."
Celotex, 477 U.S. at 323, 106 S.Ct. at 2552.