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10/05/89 Pamela Harrison, v. Sears

October 5, 1989

PAMELA HARRISON, PLAINTIFF-APPELLANT AND CROSS-APPELLEE

v.

SEARS, ROEBUCK & COMPANY ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

546 N.E.2d 248, 189 Ill. App. 3d 980, 137 Ill. Dec. 494 1989.IL.1602

Appeal from the Circuit Court of Vermilion County; the Hon. Rita B. Garman, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court. SPITZ and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Sears, Roebuck and Company (Sears) discharged plaintiff Pamela Harrison due to an incident involving misuse of the employee discount privilege. Plaintiff sued Sears and Bruce Stark, defendants, alleging wrongful discharge, breach of implied covenant of good faith and fair dealing, breach of a right to fair procedure prior to termination, and for mental suffering caused by the reckless breach of her employment contract. Additionally, she sued defendants for libel. The two causes were combined in the trial court. Defendants filed a petition for sanctions pursuant to section 2-611 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2-611). The trial court granted defendants' summary judgment on the contract and libel claims. It denied sanctions pursuant to section 2-611 of the Code.

Plaintiff appeals arguing the trial court erred in granting summary judgment on her breach of contract claims, her breach of implied covenant of good faith and fair dealing claim, her right to fair procedure claim, her claim for mental suffering, and her libel claims. Defendants cross-appeal arguing the trial court abused its discretion in denying their motion for sanctions.

We affirm.

FACTS

Plaintiff began working at Sears' Danville store on October 8, 1974. Prior to being hired, she completed a standard employment application. Plaintiff's employment was terminated on January 13, 1986, as the result of an alleged abuse of the employee discount policy occurring on January 8, 1986. In all counts of her second-amended complaint, plaintiff alleged that in exchange for employment, she agreed to abide by the rules of her employer. Therefore, she concluded the rules and regulations of Sears were incorporated into her written employment contract. Plaintiff also alleged she was discharged for "mistakenly" applying an employee discount to a customer's purchase.

In count I, plaintiff alleged that Sears breached its express employment contract by failing to follow remedial procedures set forth in its rules. In count II, plaintiff alleged Sears' actions, as stated in count I, breached its express contract with plaintiff. Plaintiff further

Plaintiff on appeal has abandoned count III of her libel complaint. In count I of the libel complaint, plaintiff alleged Sears libeled her by submitting her written statement, parts of the Personnel Policy and Procedural Manual (Manual), and an inaccurate employee discount statement to the Illinois Department of Labor in connection with a hearing on unemployment benefits. Plaintiff's benefits were denied. Plaintiff alleged Sears failed to investigate the accuracy of the charges, had no reasonable basis to believe they were true, the statements were made to annoy plaintiff, and Sears deliberately failed to verify the charge. In count II of the libel complaint, plaintiff alleged Stark, the security manager at the Danville store, induced or tricked plaintiff into signing a statement, which contained an admission of theft. Stark communicated the "untrue statement" to his supervisor. In count IV of the libel complaint, plaintiff alleged Sears was responsible for Stark's actions.

In her deposition, plaintiff stated that on January 8, 1986, the store was having a 50% off sale. Darlene Beasley, formerly plaintiff's sister-in-law, and her son were staying with plaintiff for a week on a temporary basis. Beasley selected merchandise and purchased the merchandise in the hardware department, where plaintiff and Terri Wiese worked. Plaintiff had two items at the hardware checkout with her which she wanted to buy. However, she did not wish to write another check. Therefore, Beasley was going to purchase the items for plaintiff. Plaintiff told Beasley to bring her items to hardware, and she would ring up the purchase.

Plaintiff stated Wiese offered to ring the sale so plaintiff could get her discount. While Wiese was ringing the sale, a customer interrupted. Wiese told plaintiff to finish ringing the sale. While plaintiff was completing the transaction, she noticed Wiese had made an error in calculating the markdown. Therefore, plaintiff voided Wiese's sale. Plaintiff further stated that "without thinking" she entered her own employee identification number in the register, rerang the items, and gave Beasley an employee discount on the entire purchase. Plaintiff gave Beasley one copy of the receipt and signed the other copy. After Beasley left the store, plaintiff realized she rang her own sale. She knew she was wrong in ringing up her own sale. Plaintiff stated Stark asked her to come to the office and discuss the matter, had her write out a statement about what happened, and accused her of giving Beasley an unauthorized employee discount. Plaintiff admitted giving Beasley the discount but told Stark it was a mistake.

Plaintiff further stated that she knew she could not ring her own discount purchase and she alone was supposed to get a discount. Beasley should not have received a discount on the items she purchased. Plaintiff's items were intermingled with Beasley's items and because she was rushed she entered her employee number and completed the transaction.

The applicable discount policy was printed on plaintiff's check stubs. It stated:

"The employee whose signature appears below is entitled to the regular employee discount in any store of this company on purchases for his/her personal use or for the use of members of his/her immediate family living with or supported by him/her."

Plaintiff stated she had not received a pamphlet (Getting Acquainted With Sears) explaining the discount policy. No one explained the discount policy to her, and she never read the discount policy statement on her check stub. She thought anyone living in her immediate household was eligible for her discount, including visitors. However, she knew Beasley was not entitled to the discount. On January 13, 1986, plaintiff told several employees at the store that she had been fired and explained why. Plaintiff stated she never saw the Manual while employed by Sears. After she was terminated, her attorney sent her copies of the rules and regulations stated in the Manual.

Plaintiff's supervisor, Harold Hobaugh, and Stark observed Wiese initiate the sale to Beasley. In his deposition, Stark stated he was in hardware chatting with Hobaugh. When he looked at Wiese, she was making a sale of several items of clothing to a woman. When he looked again, plaintiff was completing the sale Wiese had started. He observed plaintiff remove a ticket from the register, take money from the customer and sign one copy of the receipt. Sears had a duplicate receipt system. The only time one receipt is kept and signed is for an employee purchase. Stark did not recognize the customer as an employee and thought something might be wrong.

Stark and Hobaugh proceeded to the computer room to check the computer record of the sale. It showed plaintiff had given an employee discount on the sale. Therefore, Stark and Hobaugh went to the cash register and removed the retained receipt. Plaintiff had signed the receipt, which indicated she had given someone else her discount. Stark then talked with Wiese.

Subsequently, Stark asked plaintiff to discuss the incident. Stark said plaintiff stated the customer was formerly her sister-in-law, had moved in temporarily with plaintiff, and plaintiff gave her the discount. Plaintiff also stated she knew she was wrong. Stark asked plaintiff to make a written statement about what happened. He copied a form out of the security manual for her to use. Plaintiff told Stark one or two of the items were hers, and it was a mistake. Stark did not ask plaintiff if she had tried to contact management about correcting the mistake and was unable to reach Beasley to talk to her. Stark reported the incident to the personnel manager, Tom Mullins, and to the store manager, Richard Giacomo. A few days before the unemployment compensation hearing, Stark talked to a representative from Sears management. He had not heard the matter discussed by other employees in the Danville store.

Hobaugh's deposition statement regarding the incident supported Stark's deposition. Hobaugh discussed the incident with Giacomo and Mullins. He ...


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