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09/27/89 James Mitchell, v. Jewel Food Stores

September 27, 1989

JAMES MITCHELL, PLAINTIFF-APPELLANT

v.

JEWEL FOOD STORES, DIVISION OF JEWEL COMPANIES, INC., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

545 N.E.2d 337, 189 Ill. App. 3d 450, 136 Ill. Dec. 813 1989.IL.1522

Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Hoffman, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE FREEMAN delivered the opinion of the court. WHITE, J., concurs. JUSTICE RIZZI, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Plaintiff, James Mitchell (Mitchell), appeals from an order of the trial court granting the motion for summary judgment of defendant, Jewel Food Stores, division of Jewel Companies, Inc. (Jewel), and denying plaintiff's motion for summary judgment. Plaintiff's action alleged a breach of contract for defendant's terminating plaintiff's employment in violation of the policies set forth in an employment handbook. On appeal plaintiff contends that: (1) the employment manual formed a written contract between the parties under which plaintiff's employment was not terminable at will; (2) a prior final and unappealed order of the circuit court on administrative review which held that plaintiff's actions did not constitute misconduct estopped defendant from asserting in the instant action that plaintiff was guilty of misconduct sufficient for termination; and (3) the trial court erred in ruling that defendant could inconsistently and selectively enforce its employment policies.

For the reasons stated below, we affirm the judgment of the circuit court.

The record indicates that plaintiff was employed by defendant as a security guard in Jewel's southeast Chicago area stores from November 1976 until his termination on August 8, 1983, for submission of false time records. Plaintiff worked at various stores and his hours and days of work varied weekly. Plaintiff received his weekly schedule orally from a supervisor. Plaintiff was required to sign a "sign-in log" each day stating the time he arrived at and left work. In addition, plaintiff was required to file a time card every Saturday for the week just ending. Plaintiff was paid an hourly wage based on the time cards he submitted.

On August 1, 1983, plaintiff worked from 2 p.m. to 10 p.m. at the Jewel store at 7707 South Cottage Grove. Plaintiff was scheduled to work on August 2, 1983, from 7 a.m. to 3 p.m. Plaintiff did not arrive at work on August 2, however, until around 7:30 a.m. In an affidavit plaintiff stated that he arrived late on August 2 because he was tired from having worked late the night before and because he was taking medication. Plaintiff entered an arrival time of 7 a.m. on the sign-in log and also on his time card for August 2, 1983. When defendant discovered that the time card incorrectly indicated plaintiff's arrival time, a supervisor questioned plaintiff, who admitted he did not begin work on August 2 until 7:30 a.m. Plaintiff stated in his deposition that he filled in his time card for the week at the time he received his schedule and did not change the time on the card for August 2 after he arrived late. Plaintiff also stated that he signed the sign-in log later in the day on August 2, and not at the time he arrived. He filled in 7 a.m. on the log as the time he recalled he was scheduled to begin work.

During his employment plaintiff received from defendant a copy of Jewel's "Benefits and Policies for Security Officers." Plaintiff looked through the booklet and read some of it. The manual provides that "[v]iolation of any of the following policies will lead to disciplinary action, up to and including dismissal." One of the policies states, "All time cards and sign-in log books must reflect correct dates and times worked." The manual provides that an employee is under a probationary status for the first 90 days of employment, during which time he "may be discharged for any reason at the sole discretion of the employer." After the probationary period, an employee "shall not be suspended, discharged or otherwise disciplined without just cause, just cause to include but not be limited to the following: . . . dishonesty or other misconduct in connection with work."

After his termination from employment with defendant, plaintiff sought unemployment compensation. The referee for the division of unemployment compensation of the Illinois Department of Labor and the Board of Review determined that plaintiff's "misconduct" made him ineligible for compensation benefits. Plaintiff appealed the decision by filing a complaint for administrative review in the circuit court of Cook County. On October 4, 1984, Judge Marilyn R. Komosa reversed the determination of the Board of Review of the Department of Labor. No appeal has been taken from that order.

On appeal in this court plaintiff initially asserts that the Jewel employment manual constitutes an employment contract under which plaintiff was not terminable at will. Further, plaintiff asserts that as a "permanent" employee who worked for defendant for seven years, he could be terminated only upon a showing of just cause.

The general rule is that if an employment agreement does not specify a definite duration, it will last as long as is mutually satisfactory and either party can terminate the employment at will without liability for breach of contract. (Crenshaw v. DeVry, Inc. (1988), 172 Ill. App. 3d 228, 526 N.E.2d 474.) Where, however, more specific terms regarding grounds for discharge or other conditions are properly made part of the contract, then breach of those provisions may constitute a breach of contract. See Crenshaw, 172 Ill. App. 3d 228; Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314.

In Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314, the supreme court held that for an employee handbook to create an enforceable contract, the handbook must meet the traditional requirements for contract formation, namely:

"First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement." (Duldulao, 115 Ill. 2d at 490.)

Plaintiff contends that in the instant case all three requirements of Duldulao were met. Defendant responds that plaintiff failed to prove the second and third requirements, since plaintiff failed to bring evidence to show that he specifically read the part of the manual regarding discipline of permanent employees.

The record indicates that plaintiff read through the employment manual, although plaintiff believed that he did not read the manual "thoroughly." Upon being questioned, however, plaintiff stated that he understood there was a company policy against falsifying a time card. Plaintiff stated that he knew that such falsification was improper. Further, plaintiff ...


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