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06/30/94 MARK P. CUNNINGHAM v. DMI

June 30, 1994

MARK P. CUNNINGHAM, PLAINTIFF-APPELLANT,
v.
DMI, INC., A FOREIGN CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the 10th Judicial Circuit, Tazewell County, Illinois. No. 92-L-100. Honorable Bruce W. Black Judge, Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Present - Honorable Kent Slater, Presiding Justice, Honorable Peg Breslin, Justice, Honorable Tobias Barry, Justice

The opinion of the court was delivered by: Slater

JUSTICE BRESLIN delivered the opinion of the court:

The plaintiff, Mark P. Cunningham, brought this action alleging that the defendant, DMI, Inc., discharged him from his employment with the defendant in violation of an employee manual which created contractual rights between the parties. The trial court granted the defendant's motion for summary judgment finding that the plaintiff was not a contractual employee, and therefore his employment could be terminated at will. The plaintiff appeals. We affirm.

The plaintiff was a full-time employee of the defendant from January 1988 until his termination in March 1992. The incident that lead to his termination occurred in the fall of 1991, when he sent a cover letter and document entitled "Rules of Bedroom Golf" to Janet Mountjoy who was the secretary of the president of the company. By means of innuendo, the "Rules" described various sex acts. Theplaintiff did not sign his name to the document or cover letter. Rather, he signed the name of a fellow employee and mentioned that the undersigned as well as another named employee were interested in "researching" various "rules" with Mountjoy.

Upon receiving the cover letter and "Rules," Mountjoy reported the incident, and an investigation was promised. In March 1992, Mountjoy recognized the handwriting on a document written by the plaintiff as the same as that on the cover letter. The plaintiff denied writing the cover letter when questioned by management. However, after a handwriting examiner determined that the handwriting on the cover letter matched the known samples of the plaintiff's handwriting, the plaintiff was fired. According to the defendant's disciplinary action form, the plaintiff was terminated for violating rule C-9 which prohibited "immoral behavior on company premises or during working hours." In its answer, the defendant stated that the plaintiff was also terminated because he lied about writing the cover letter.

The defendant's "Rules and Regulations" provided, inter alia:

"It is essential that penalties for rules violated are imposed consistently from one department to another. Except in unusual cases, where mitigating circumstances exist, the same penalty should apply to all employees. The letter in the column along side each rule listed in paragraph three describes the appropriate penalties as follows:"

The document then lists "Recommended " penalties for various offenses ranging from a written warning to dismissal. The document further states that "warnings may be issued by the supervisor on his own initiative, however, all layoffs or dismissals of employees must be approved by both the supervisor and Department Manager." The document continues "whenever any disciplinary action is taken, the disciplinary action form must be completed by the employee's immediate supervisor, signed by the employee and turned into the Personnel Department."

On appeal, the plaintiff argues that the trial court erred in finding that the defendant's "Rules and Regulations" did not contain a promise clear enough that the employee would reasonably believe that a contractual offer had been made.

It is well settled that employment relationships of indefinite duration are presumed terminable at will by either party without cause unless facts support the existence of a contract. ( Long v. Tazewell/Pekin Consol. Comm. Ctr. (1991), 215 Ill. App. 3d 134, 574 N.E.2d 1191, 158 Ill. Dec. 798; Harrell v. Montgomery Ward & Co. (1989), 189 Ill. App. 3d 516, 545 N.E.2d 373, 136 Ill. Dec. 849.) The leading case on thefactors necessary for an employer's policy manual to create enforceable contractual rights is Duldulao v. St. Mary of Nazareth Hospital (1987), 115 Ill. 2d 482, 505 N.E.2d 314, 106 Ill. Dec. 8. In Duldulao, the supreme court set forth a three-part test to determine if an employee manual creates enforceable contractual rights. All three factors must be met.

In the present case, the trial court found that the first Duldulao factor was not met. That factor provides that "the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made." ( Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318.) Whether this requirement has been met is a threshold question of law to be determined by the court. Harrell v. Montgomery Ward & Co. (1989), 189 Ill. App. 3d 516, 545 N.E.2d 373, 136 Ill. Dec. 849.

In Duldulao, the handbook set out a disciplinary procedure and then stated that employees are "never dismissed" without prior written admonitions and/or an investigation that has been properly documented, that three warning notices within a three-year period are "required" before an employee is dismissed and that termination "cannot" occur without proper notice and investigation. The supreme court found that the above language was ...


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