The opinion of the court was delivered by: LINDBERG
Defendant, Association of American Railroads, has moved for partial summary judgment and to strike plaintiff's jury demand. Defendant seeks summary judgment on Count IV of plaintiff, Ellanoyes Montgomery's, amended complaint. According to defendant, that count is the only one on which plaintiff is entitled to a jury trial, so defendant requests that plaintiff's jury demand be stricken if summary judgment is entered in defendant's favor on Count IV.
In Count IV of the amended complaint, plaintiff alleges a claim for breach of her employment contract. The relevant allegations of Count IV state:
12. At the time of Plaintiff's employment with AAR, AAR had in effect certain written policies regarding progressive discipline and termination for good cause. These policies were distributed to AAR employees, including Plaintiff. A copy of the policy is attached as Exhibit A and incorporated herein. After receipt of these policies, Plaintiff continued her employment in reliance upon them. These policies created a binding contract of employment between Plaintiff and AAR.
13. Contrary to the terms of her employment, Plaintiff was not allowed an opportunity to improve the alleged deficiencies in her performance but was in fact terminated after working only one day during her probationary period. AAR breached the terms of its employment contract created by the written policies by terminating Plaintiff on November 28, 1988, without prior warning, without allowing reasonable time to improve, without allowing reasonable time to show good faith effort and without cause.
Attached to the amended complaint was a copy of a three page document, referred to as I.C.7., setting forth defendant's discipline policies and procedures. Defendant contends that it is entitled to summary judgment under Illinois law because there is no genuine issue as to any material fact as to one or more of the following propositions: (1) "The language in the policy upon which plaintiff relies was insufficient to form a contract;" (2) "the disclaimer in the preamble to policy manual precludes [plaintiff's] contract claim;" and (3) "plaintiff cannot establish that defendant breached any contract."
Summary judgment should be rendered:
If the pleadings, depositions, answers to interrogatories, and admissions on file, 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 judgment as a matter of law.
FRCP 56(c). The 7th Circuit has said that:
Summary judgment is appropriate where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). . . . The summary judgment standard "mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict." [ Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 251 (1986)].
Teamsters Local 282 Pension Trust Fund v. Angelos, 839 F.2d 366, 369-70 (7th Cir. 1988). In order to determine whether this standard has been met with respect to Count IV of the amended complaint, it is necessary to understand the Illinois law concerning employment manuals, handbooks, and policy statements.
The Illinois Supreme Court in Duldulao v. Saint Mary of Nazareth Hospital, 115 Ill. 2d 482, 505 N.E.2d 314, 106 Ill. Dec. 8 (1987), held:
That an employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present. 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. When these conditions are present, then the employee's continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed.
Duldulao v. Saint Mary of Nazareth Hospital, 115 Ill. 2d 482, 505 N.E.2d 314, 318, 106 Ill. Dec. 8 (1987). In holding that statements in an employee handbook were an offer, the Duldulao court found it significant that "the handbook contains no disclaimers to negate the promises made." Duldulao v. Saint Mary of Nazareth Hospital, 115 Ill. 2d 482, 505 N.E.2d 314, 319, 106 Ill. Dec. 8 (1987). Because a disclaimer of intent to form a contract generally will make it unreasonable for an employee to believe that a handbook, employment manual or other policy statement contains an offer, see Moore v. Illinois Bell Telephone Company, 155 Ill. App. 3d 781, 508 N.E.2d 519, 521, 108 Ill. Dec. 358 (1987), courts following Duldulao have taken the Duldulao court's hint and given effect to such disclaimers. E.g., Morgan v. Harris Trust and Savings Bank of Chicago, 867 F.2d 1023, 1029 (7th Cir. 1989); Wojcik v. Commonwealth Mortgage Corporation, 732 F. Supp. 940, 941 (N. D. Ill. 1990); Hogge v. Champion Laboratories, Inc., 190 Ill. App. 3d 620, - , 546 ...